E PROFILING POLICE AND CONSTRAINTS FIGHTING ...Order. 08 Civ. 1034 (SAS). Collection 9 recommendations presented in Chapter 2 and discusses the monitoring and recording of police activities

ETHNIC PROFILING POLICE AND CONSTRAINTS

FIGHTING DISCRIMINATION

By Amanda Hildebrand Oi

Submitted to Central European University

Department of Legal Studies

Human Rights

In partial fulfilment of the requirements for the degree of LLM in Human Rights

Supervisor Professor Michael Hamilton

Budapest Hungary

Abstract

The thesis debates the phenomenon of ethnic profiling which is one of the growing forms of

modern racial and ethnic discrimination Hidden behind security and safety arguments this

practice constantly stigmatizes minority groups putting them under more rigid surveillance or

submitting them to less respectful treatments This thesis argues that ethnic profiling by law

enforcement officers must end To reach this goal the thesis discusses the existent legal

framework assessing how they prevent or enable discrimination Moreover the thesis concludes

that measures such as monitoring and recording police activities are fundamental to address the

issue of ethnic profiling

Acknowledgements

I thank every person I met during this journey Special thanks to Open Society Justice Initiative

Anna Fischer Zaza Namoradze Michael Hamilton dear colleagues from Rede de Justiccedila

Criminal (Brazil) Kaloyan Udani Fisseha my family friends and Raul

To Nina and Voacute Deacutebora

Contents

Introduction 6

Chapter 1 - Conceptualizing Ethnic Profiling 10

11 Objective and reasonable justification 16

12 Impact of ethnic profiling on social and political life 23

Chapter 2 - International Standards regarding discrimination 29

21 United Nations level 29

22 European level 35

23 Recommendations to address ethnic profiling 41

Chapter 3 - Limiting Police Discretion 48

31 European cases 52

32 National cases 56

Chapter 4 - Monitoring and recording police actions 70

41 The Stephen Lawrence Inquiry - MacPherson Report 73

42 Ethnic data protection 78

Conclusion 84

Bibliography 88

List of Abbreviations

CERD - Committee on the Elimination of Racial Discrimination

ECHR ndash European Convention on Human Rights

ECtHR ndash European Court of Human Rights

ECRI ndash European Commission against Racism and Intolerance

EU ndash European Union

FBI ndash Federal Bureau of Investigation

ICCPR ndash International Convention on Civil and Political Rights

NYPD ndash New York Police Department

OSCE ndash Organization for Security and Co-operation in Europe

PACE ndash The Police and Criminal Evidence Act 1984

UK ndash United Kingdom

UN ndash United Nations

US ndash United States of America

Introduction

ldquoNo country is free from racial discrimination in the administration and

functioning of the criminal justice system regardless of the type of law

applied or the judicial system in force whether accusatorial inquisitorial or

mixedrdquo1

Ethnic profiling is a worldwide problem that manifests in different forms and shapes of

discrimination in the different parts of the globe Special Rapporteur Leiumlla Zerrougui pointed out

the role of police in the discrimination practiced by the criminal justice systems by saying that

ldquoin considering human rights violations in general and more particularly violations of the right

to non-discrimination in the criminal justice system it may be observed that it is within the

security services and more particularly the police that the most serious the most flagrant and the

commonest violations occurrdquo2

The Special Rapporteur on contemporary forms of racism racial discrimination

xenophobia and related intolerance Mr Doudou Diegravene also called attention for the widespread

practice of racial and religious profiling He observed that this ldquoappears as an alarming indicator

of the rise of a racist and discriminatory culture and mentality in many societiesrdquo and pointed to

the urgency of recognizing this practice and more importantly adopting measures - legislative

judicial and administrative measures - to ban and punish it 3

These first sentences of this thesis stress how urgent the topic of racial profiling is

Building on the assumptions above this thesis discusses ethnic profiling by police with special

1 General recommendation XXXI on the prevention of racial discrimination in the administration and functioning of

the criminal justice system UN Committee on the Elimination of Racial Discrimination (CERD) 2005 2 Progress Report on Administration of Justice Rule of Law and Democracy Discrimination in the Criminal Justice

system Ms Leiumlla Zerrougui UN Special Rapporteur 2005 3 Report on contemporary forms of racism racial discrimination xenophobia and related intolerance by the Special

Rapporteur Mr Doudou Diegravene January 2004 Pg 7

focus on stop and search It points out challenges to address ethnic profiling and explores the role

of police collected data as well as the controversies surrounding ethnic data collection

The choice of focusing on policing activities specifically stop and search is due to the

perceived value of this particular action4 considered to be an important modern strategy of

policing Stop and search is primarily an investigative tool used by police to prevent and also

repress crime However the fact that it is a police power designed to serve specific purposes

does not mean that it cannot produce collateral effects The thesis briefly debates other types of

ethnic profiling as they serve both analytical and illustrative purposes

Studies show that peoplersquos personal experiences shape their perception about what were

exposed to5 Therefore the experience of being stopped and searched is not only relevant from

the police perspective but it also impacts on the societyrsquos evaluation of and confidence and trust

in the police For this reason in relation to police powers and their interaction with the

community the stop and search power is the most significant once it amounts to a direct

interaction ndash sometimes the only type of interaction ndash between members of the community and

the police

Moreover being stopped and searched means to be placed under state control which

directly interferes in some basic rights such as the right to liberty right to privacy and freedom of

movement This reach of stop and search powers is observed by the Supreme Court of the United

States of America that stated that a stop happened when ldquotaking into account all of the

circumstances surrounding the encounter the police conduct would lsquohave communicated to a

4 According to the Home Office in England and Wales only 29407 searches in 20032004 were made under the

Terrorism Act 200 while 738016 were made under the PACE (1984 Police and Criminal Evidence Act) 5 Sunshine Jason and Tom Tyler The Role of Procedural Justice and Legitimacy in Shaping Public Support for

Policing Law amp Society Review Volume 37 Number 3 (2003) and Tyler Tom R Policing in Black and White

Ethinic group differences in trust and confidence in the Police Police Quarterly v8 n3 p322-342 sep 2005

reasonable person that he was not at liberty to ignore the police presence and go about his

businessrsquordquo6

The thesis is divided into 4 chapters Firstly ethnic profiling is conceptualized

Considering that ethnic profiling is a global and relatively new concept the thesis draws upon

international and country specific literature and reports made by the United Nations and others

organizations Then chapter one briefly discusses the question of discrimination debating

whether it is possible to justify ethnic profiling The impacts of ethnic profiling are also

presented in chapter one in order to reinforce all the harmfull effects such practice can have

Following the first considerations surrounding ethnic profiling international legal

standards are listed in order to examine how deep and wide is international law protection over

the issue This chapter gives special attention to the issue of discrimination once the provisions

concerning discrimination are the substantially the one that support the most the fight against

ethnic profiling In chapter two the discussion is illustrated by case law mainly from the

European Court of Human Rights and is reinforced by some recommendations of how to

address the ethnic profiling

In chapter three the question of discretionarily is debated in light of the notion of

reasonable suspicion lsquoReasonable suspicionrsquo is also addressed since it is often the legal pre-

requisite for the exercise of police powers to stop and search The discussion is conducted by the

debate of cases Special focus is given to European American and British scenarios

Although this thesis explores specific experiences and debates certain contexts it seeks to

examine those situations in order to illuminate a general problem - the difficulties faced in

combating discriminatory ethnic profiling Chapter four focusing on some of the

6 Floyd et al vs City of New York et al United State District Court Southern District of New York Opinion and

Order 08 Civ 1034 (SAS)

recommendations presented in Chapter 2 and discusses the monitoring and recording of police

activities as essential measures to fight ethnic profiling Special attention is given to the

experience of profiling in England and Wales regarding the Stephen Lawrence Inquiry which

offers an interesting historical approach to the recording system in place in the UK

This thesis is conducted in a direction that points for a data oriented model of policing as

a potential model to contribute to the end of police discriminatory behavior Some of the issues

faced by this proposition are also debated in Chapter four in the section about data protection

The assumption guiding the present debate is that without qualified data statistical and

experienced based there is no possibility of identifying ethnic profiling nor planning or

implementing policies against ethnic and racial profiling Even though each state faces particular

difficulties the thesis assumes that the specific experiences analyzed will provide arguments and

tools that are able to shed light on other realities and can be used as a guide to orient their efforts

to combat ethnic profiling

Chapter 1 - Conceptualizing Ethnic Profiling

Profiling is seen as ldquothe most misunderstood and emotionally laden term in the modern

vocabulary of law enforcement and politicsrdquo7 The term profiling does not indicate in itself a

wrong doing In the same way the use of profiling can be valid if the profile was built based on

objective factors and evidence of a specific case Profiling can also have another meaning From

a behavioral science perspective the concept of criminal profiling is a concept used as an

investigative tool that allows the police to have a more clear psychological and social lsquoprofilersquo of

the offender besides contributing to a police assessment of the offender

In conceptual terms criminal profiling uses past experiences to predict possible future

occurrences by ldquoinferring the likely characteristics of an offender from analysis of criminal

behaviour and other factors associated with a crime or series of crimesrdquo8 This technique was

developed and firstly applied to serial killers cases in the US and in the late 1970s it started to be

used to fight drug offences This extension in the application of criminal profiling represented a

significant shift from descriptive and analytical profiles to proactive detection of crime based

partially in prediction9

This prediction feature represents a significant change to the debate on law enforcement

strategies and for the rising of the debate on ethnic profiling10

The two notions ndash criminal

profiling and ethnic profiling ndash are different concepts that do not share the same reasoning

though they bring forth similar consequences namely categorizing people in profiles Ethnic

7 Alan Dershowitzrsquos words quoted in an article for the Harvard University Gazette December 2001 Available at

httpwwwnewsharvardedugazette2001121317-dershowitzhtml 8 Professor Cunneen Expert Opinion Daniel Haile-Michael amp ors v Nick Konstantinidis amp ors File Number

VID9692010 Federal Court of Australia 9 Schutter Oliviers De and Julie Ringelhein Ethnic Profiling A Rising Challenge for European Human Rights Law

The Modern Law ReviewOxford (2008) 71(3) 358-384 10

In this thesis the term racial profiling and ethnic profiling will share the same meaning and will be used similarly

profiling is ldquothe practice of using ethnicity race national origin or religion as a basis for

making law enforcement decisions about persons believed to be involved in criminal activityrdquo11

Similarly the European Commission against Racism and Intolerance (ECRI) presents another

definition according to which ethnic profiling happens when the police or other law enforcement

officer use with no objective and reasonable justification race colour language religion

nationality or national or ethnic origin as a ground for control surveillance or investigation

activities12

These definitions look like the same but there a fundamental difference between them

The second definition adds important elements - objective and reasonable justification - which

are core in the debate of what exactly constitutes ethnic profiling According to Open Societyrsquos

definition ethnic profiling is the use of such criteria as ground for decision making regardless

justifications Therefore ethnic profiling by police is a form of discrimination

ECRIrsquos definition on the other hand states that ethnic profiling depends on the existence

or not of objective and reasonable justifications as provided by Recommendation 11 The

Explanatory Memorandum of Recommendation 11 however observes that lsquono objective and

reasonable justificationrsquo means not pursuing a legitimate aim or not having a reasonable

relationship of proportionality between the means employed and the aim sought ECRI in my

view recognizes the risk of authorizing the reliance in racial or ethnic grounds when affirms that

ldquoeven when in abstract terms a legitimate aim exists (for instance the prevention of disorder or

crime) the use of these grounds in control surveillance or investigation activities can hardly be

Reducing Ethnic Profiling in the European Union A Handbook of Good Practices Open Society Justice Initiative

2012 12

ECRI General Policy Recommendation No 11 on Combating Racism and Racial Discrimination in Policing

Council of Europe European Commission against Racism and Intolerance June 29 2007

justified outside the case where the police act on the basis of a specific suspect description within

the relevant time-limitsrdquo13

Accordingly the Recommendation 11 does not fully prohibit ethnic profiling but requires

the introduction of lsquoreasonable suspicion standardrsquo whereby law enforcement powers ldquocan only

be exercised on the basis of a suspicion that is founded on objective criteriardquo14

This thesis adopts Open Societyrsquos view considering ethnic profiling a discriminatory

practice in its nature In other words ethnic profiling is the discriminatory use of ethnicity race

national origin or religion as the basis for making law enforcements decisions Though this is

my understanding the concept of what constitutes ethnic profiling is far from being unanimous

therefore the thesis will sometimes relinquish this view in the name of analyzing other cases

instead of only trying to prove that what happened was ethnic profiling

Returning to the question of prediction which is straightly connected to ethnic profiling

regarding the process that lead law enforcement officers to choose their criteria on which they

will base their decisions Bernard Harcourt indicates how unjust and inefficient it is to predict

onersquos behavior by looking into others that share the same physical feature ndash which in our

discussion is race or ethnicity Harcourt says prediction ldquohas distorted our conception of just

policing by emphasizing efficiency over crime minimization Profiling has become second nature

because of our natural tendency to favor economic efficiencyrdquo15

Explanatory Memorandum of ECRI General Policy Recommendation No 11 on Combating Racism and Racial

Discrimination in Policing Council of Europe European Commission against Racism and Intolerance June 29

2007 14

Council of Europe European Commission against Racism and Intolerance June 29 2007 15

Peter Moskos Book Review of Bernard Harcourt Against Prediction Profiling Policing and Punishing in an

Actuarial Age Chicago University of Chicago Press 2007 and Barnes Katherine Y Barnes Against Judgement

Book Review of Bernard Harcourt Against Prediction Profiling Policing and Punishing in an Actuarial Age

Chicago University of Chicago Press 2007

However despite the official discourse claiming ethnic profiling as an efficient law

enforcement tool studies argue in opposite way16

A case brought before the German Federal

Constitutional Court demonstrates how inefficient and problematic such practice is The German

police authorities conducted an investigation to find Islamic terrorist lsquosleepersrsquo The operation

screened a huge amount of personal data ndash approximately 8 million persons - in property of

public and private institutions in order to identify profiles that would match a certain profile they

considered as a potential threat ndash being male Muslim and native of some specific countries were

among the characteristics Around 32 thousand persons were identified but the operation did not

lead to the finding of any suspect of terrorism17

Racial profiling was first used in association with a strategy to interdict drug traffickers

during the late 1970s in the United States of America However ethnic profiling had already

been practiced before when President Franklin Roosevelt in 1942 gave the Secretary of War the

power to order over 110 thousand Japanese Americans (Executive Order 9066) to be deported to

internment camps Although the policy faced some criticism at that point ethnic profiling was

not recognized as a wrong doing in the same way we now do18

Ethnic profiling can be applied in many different circumstances Accordingly ethnic

profiling can be practiced in cases such as stop and search by police immigration control

provision of public services and for national security reasons ndash ldquowar on terrorrdquo situations

MVA and J Miller Profiling Populations Available for Stop and Search Home Office Police Research Series

Paper 131 London 2000 and Miller Joel Nick Bland and Paul Quinton A Challenge for Police-Community

Relations Rethinking stops and search in England and Wales European Journal on Criminal Policy and Research 9

71ndash93 2001 17

Schutter Oliviers De and Julie Ringelhein Ethnic Profiling A Rising Challenge for European Human Rights

Law The Modern Law ReviewOxford (2008) 71(3) 358-384 18

In 1988 the US Congress passed the Civil Liberties Act which stated that a ldquograve injusticerdquo was done to

Japanese American citizens and resident aliens during World War II It also established a fund that paid some $16

billion in reparations to formerly interned Japanese Americans or their heirs Executive Order 9066 Resulting in the

Relocation of Japanese Available at httpwwwarchivesgovhistorical-docstodays-docdod-date=219

Moreover it also can be done through different means As described in the German case data

screening is a method of profiling using electronic data processing19

Other methods are the

segregation of people submitting people to identity checks to stop and search powers or to

security checks

David Harris uses a different vocabulary and qualifies ethnic profiling as formal and

informal profiling The first one would be based on ldquohard data accumulated methodically over

timerdquo and the profiles would be established by competent authorities20

Both mentioned cases ndash

the German operation and the President Roosevelt act in 1942 ndash are examples of formal

profiling

Informal profiling consists in a ldquostreet senserdquo shaped out of ldquofiltered experience and

preexisting judgmentsrdquo that can lead to a reflection of ldquopreconceptions in the profiler rather than

being accurate representations of who commits crimerdquo According to Jeffrey Goldbergrsquos

understanding ldquomost racial profiling today is conducted by individual officers engaged in street-

level policing it is not generally a practice authorized by state statutes local ordinances or even

police manuals or guidelinesrdquo21

This type of profiling is naturally harder to prove as there is no

express order to apply ethnic profiling Besides in many countries although ethnic profiling is

present the concept of ethnic profiling is not known and consequently the practice is maintained

as a hidden police strategy

Kett-Straub Gabriele Data Screening of Muslim Sleepers Unconstitutional German Law Journal l 07 No 11

967-975 2006 20

David A Harris Profiles in Injustice Why Racial Profiling Cannot Work 20 (New York New Press)pg 26 In

Actuarial Age Chicago University of Chicago Press 2007 21

Jeffrey Goldberg The Color of Suspicion NY TIMES June 20 1999 sect 6 (Magazine) at 5 in Wu Steven In

The Secret Ambition of ethnic profiling The Yeale Law Journal 115 Yale LJ 491 2005

That is the case in Australia A case brought before the Federal Court challenged

profiling against the black community by Victoria police in Flemington Kensington and North

Melbourne areas Six young men of African descent claimed they were regularly stopped

searched questioned and sometimes even beaten by police just because they were black22

was the first race discrimination related case to arrive in the Federal Court

Professor Cunneen an expert who gave his opinion in the case studies discrimination

focusing on indigenous people In his Expert opinion he highlighted the existence of profiling in

Australia He said that although the concept of racial profiling was not frequently used in

Australia a significant ldquobody of both academic literature and the findings from various

commissions of inquiry royal commissions and parliamentary inquiries which have identified

the adverse use of police discretion on the basis of the perceived race of an individualrdquo23 This is

very illustrative of what happen in many places around the world where not necessarily the

vocabulary is been used but the practice of ethnic profiling is present In Australia according to

many finding police actions were falling within the definition of racial profiling

Regardless being formal or informal as observed the possibility of applying ethnic

profiling in accordance with the law is a matter of discussion One of the arguments is that the

practice of using race as one of many factors orienting law enforcement decisions will not

necessarily be discriminatory The next section presents some cases and discussions concerning

this question

ABC News Available at httpwwwabcnetaunews2013-02-18police-agree-to-new-procedures-to-combat-

racism4524770 23

Professor Cunneen Expert Opinion Daniel Haile-Michael amp ors v Nick Konstantinidis amp ors File Number

VID9692010 Federal Court of Australia

11 Objective and reasonable justification

When discussing ethnic profiling one topic requires special attention due to its impact on

the debate ndash the episode of September 11 2001 After September 11 there was a shift that

contributed to shape the new terms of the debate Looking to the US context before September

11 attack racial profiling was a problem affecting African Americans or Hispanics After the

attack Arabs and Islamic also started to be globally profiled

In analytical terms Gross and Livingston alert us to the fact that before September 11

the disputes was usually factual They say that ldquocritics would argue that the police acted on the

basis of race and the police would deny it Now the differences are more likely to be definitional

or frankly normativerdquo 24

The terms of the debate post 9-11 according to them are driven by

questions like Does it constitute racial profiling And if so are the actions nevertheless

justified

These questions were posed by Gross and Livingston in a discussion about the US Justice

Departmentrsquos actions concerning the program of interviewing men coming from countries with

an Al Quaeda presence The authors observe that even assuming that ethnicity was a central

factor in the selection of the suspects it was not clear that the program consisted in ethnic

profiling as it was not clear that the program worked under the assumption that those men

coming from those places were more likely to commit terrorist acts The Justice Department

argued that those men were not suspects but they might be in the same circles or social groups

and so they could help with information about the community what could lead to the terrorists25

24 Gross Samuel and Debra Livingston Racial Profiling under Attack Columbia Law Review Vol1021413 2002

Pg 1414 25

Gross Samuel and Debra Livingston Racial Profiling under Attack (2002) pg 1417

The European Court of Human Rights case law also contributes to this debate In Cisseacute v

France the applicant alleged ldquothat she had been discriminated against as the decisive criterion

for determining whose identity would be checked was the skin colour of those present in the

churchrdquo26

This case discussed the right to freedom of assembly and the police action which

evacuated many immigrants from a church they had occupied According to the description of

the case all the white occupants of the church were stopped but the lsquowhites were immediately

released while the police assembled all the dark-skinned occupantsrsquo The Court did not find a

violation and held that regarding ldquoArticle 5 taken together with Article 14 of the Convention the

Court notes that the system set up at the church exit for checking identities was intended to

ascertain the identity of persons suspecting of being illegal immigrants In these circumstances it

cannot conclude that the applicant was subjected to discrimination based on race or colourrdquo27

It is possible to find decisions in both directions and the discriminatory components

which infringe different treatments often are seen as neutral and objective I believe however

that ethnic profiling is not only a matter of purpose but it is essentially subjecting people on the

basis of their race or ethnicity to different treatment In the US Justice Department case maybe

there was not the subjective belief that those people were terrorists but because of their

nationality they were treated differently And in the ECtHR case the Court debated more

expressly the existence or not of ethnic profiling concluding that it was not the case although

dark-skinned people were assumed to be illegal immigrants and were treated differently on the

basis of their skin color and nationality

The previously cited German case also reinforces my view since the Constitutional Court

recognized the legitimacy of the pursued aim ndash safeguarding national security ndash however it

26 Cissegrave v France European Court of Human Rights Application no 5134699 Judgement on 9 April 2002 27

Cissegrave v France European Court of Human Rights Application no 5134699 Judgement on 9 April 2002

stated that the operation was disproportional because of the burden imposed on constitutional

rights

Professor Richard Banks disagrees with my stated view about purposes and means

Discussing the US Justice Department case he does recognize the practice of ethnic profiling

however he considers it a less disturbing case because that policy does not affirm that such group

has more propensitiy to crime and instead it deals with an extreme situation where the

government expects to receive a sort of collaboration from that group

Gross and Livingston say that the authorized ldquouse of race - which usually occurs when

there is a racially specific description of the criminal - does not entail a global judgment about a

racial or ethnic group as a wholerdquo 28

In fact the use of race to search for an offender in one

specific situation where it is known the race of the offender has nothing to do with police

officersrsquo perceptions about racial or ethnic groups This is instead what is called suspect profile29

However even in this case race cannot be the only hint police have yet the suspect description

in itself does not necessarily entail any conclusion about that racial or ethnic groups

In other words the fact that one specific robber or drug dealer who is been searched is

known to be white Latino Arab or black does not allow police to stop every person belonging to

that race or ethnicity Of course the notice about the offenderrsquos feature will affect the police

strategy designed to catch that offender but if the strategy is not only race oriented and does not

entail in a disproportional burden to a whole group of people then it is not a discriminatory

racial profiling case

Gross and Livingston also state that if the police deliberately discriminate by for

instance stopping all speeders but giving them different treatment such as giving tickets to black

Gross Samuel and Debra Livingston Racial Profiling under Attack (2002) pg 1415 29

Reducing Ethnic Profiling in the European Union A Handbook of Good Practicesrdquo Open Society Justice

Initiative 2012 Pg 17 e 18

drivers only while whites receive just a warning the police will be acting in violation of the

Equal Protection Clause of the Fourteenth Amendment but that will not be racial profiling For

Gross and Livingston racial profiling is a matter of fact and so is more an evidentiary matter and

would occur ldquowhenever a law enforcement officer questions stops arrests searches or

otherwise investigates a person because the officer believes that members of that persons racial

or ethnic group are more likely than the population at large to commit the sort of crime the

officer is investigatingrdquo30

Racial profiling therefore according to their understanding is more

than just applying different treatment it is essentially subjective and based on a global judgment

that a specific group is more prone than other racial or ethnic groups to commit crime or to

commit a particular type of crime

An Israeli case brought before the Israeli Supreme Court is discussing this same issue in

the context of profiling in the security checks at the airport31

The complaint focus on the

discrimination committed against Israeli Arabs who are submitted to long security checks while

Israeli Jews do not have to undergo through the same procedure Citizenship and equality are in

the center of the discussion They ask the Court to recognize the discriminatory procedure and

ask the State to cancel this procedure of racial profiling and to do equal security checks based on

relevant and equal criteria A study conduct about ethnic profiling in Airport Screening in Israel

revealed that Israeli Arabs were required to additional searches four times more than Israeli

Jews 32

Information available on Association for Civil Rights in Israel website Available at

httpwwwacriorgilen20110303order-nisi-in-racial-profiling-petition and

httpwwwacriorgilen20110303order-nisi-in-racial-profiling-petition 32

Hasisi Badi and Yoram Margalioth Ethnic Profiling In Airport Screening Lessons From Israel 1968ndash2010

Oxford University Press on behalf of the American Law and Economics Association 2012

Like Gross and Livingston understanding the complaint also related the facts to an

equality issue however the Israeli case also challenges their view by demonstrating that racial

profiling is related to all decision making processes the aim and the means It does not matter if

the consequence of the law enforcement officerrsquos decision was a ticket or a longer security

checks if the decision was based on or motivated by race ethnicity religion or national origin

it is a racial profiling case

Gross and Livingstonrsquos position regarding the subjectivity of racial profiling is in my

view somehow problematic once one of the main difficulties of addressing ethnic profiling is the

basic step of proving its existence Ethnic profiling would never be able to be effectively

challenged judicially or administratively addressed if it was based only on the subjective

perception of officers This understanding poses an insuperable obstacle if it only attributes to

the individual the responsibility for that discrimination practiced

The same problem happens if the individual responsibility is excluded It is important to

address both the individual misconduct as the institution responsibility for that misconduct and

potential violation of rights and freedoms That was the approach taken by an inquiry conducted

in the UK in the 1990s The Inquiry Report ndash Macpherson report ndash concluded that the inquired

situation was a result of institutional racism and defined institutional racism as ldquothe collective

failure of an organization to provide an appropriate and professional service to people because of

their colour culture or ethnic originrdquo33

One of the challenges of this concept is the notion of unintentional racism Naturally

police officers do not self-define as racists then what explains racist actions by the police as an

institution This paradox be explained by the notion of lsquounwitting racismrsquo which ldquocan arise

The Inquiry into the matters arising from the death pf Stephen LawrenceThe Stephen Lawrence Inqury

Conducted by Sir William Macpherson of Cluny 15 February 1999

because of lack of understanding ignorance or mistaken beliefs It can arise from well-

intentioned but patronizing words or actions It can arise from unfamiliarity with the behaviour

or cultural traditions of people or families from minority ethnic communities It can arise from

racist stereotyping of black people as potential criminals or troublemakers Often this arises out

of the uncritical understanding born out of an inflexible police ethos of the `traditional way of

doing thingsrdquo34

Like it happens with the understanding of ethnic profiling as a subjective issue the notion

of institutional racism is not complete and if analyzed alone ignores the central role of

accountability It recognizes the discriminatory practice but it finds an explanation that sounds

more like a justification and also reinforces the idea of a non-accountable situation as there is no

clear cause and it is very hard to identify the responsible for this

Moreover the lack of understanding of probable causes and putting the fault on a racist

institution are ways to keep race in a secondary position without challenging the hierarchical

division of society For this reason although it is an useful tool to understand the power of

racism that can overtake the whole functionality of an institution institutional racism has not in

itself a changing power but rather it reinforce the status quo

Institutions should in my view observe three important issues if they want to prevent the

occurrence of racial profiling (a) is the legal framework sufficient to avoid ethnic profiling (b)

to what extent is police discretionary power causing the problem and (c) if it is not a matter of

formal ethnic profiling what are means available to deal with misconduct of law enforcement

officers

34 The Inquiry into the matters arising from the death pf Stephen LawrenceThe Stephen Lawrence Inqury

Changing the focus to the use of race ethnicity or national origin as objective criteria a

fundamental question is raised concerning the meaning and extension of what is considered to be

objective Statistical data are in no way absolutely neutral or reliable since in the processing of

data other elements as the methodology used play important roles and they can also be oriented

by prejudice

In this context of controversial use of data it is worth noting one of the basic principles

of data protection that says that standards must be observed to ensure the collected data serve the

right purpose The EU Directive 9546EC that regulates the protection of personal data requires

that such data shall be ldquoprocessed fairly and lawfully and collected for specified explicit and

legitimate purposes and not further processed in a way incompatible with those purposesrdquo35

Moreover Article 17 of the UN International Covenant on Social and Political Rights prohibit

the arbitrary or unlawful interference with his or her privacy which has to be protected

It will be discussed further in this thesis the role of statistical data and official

information to dismantle the practice of ethnic profiling For now it is important to highlight that

whether it is a subjective or objective matter the only possible way of identifying the occurrence

of informal ethnic profiling and learning its extension is through reliable data analysis As

observed by Schutter ldquothe development of a strategy effectively tackling this phenomenon lies

with the ability of public authorities to have sufficient information about how law enforcement

officers use their powers on the ground vis-agrave-vis people belonging to different ethnic groupsrdquo36

EU Directive 9546EC of the European Parliament and of the Council of 24 October 1995 on the protection of

individuals with regard to the processing of personal data and on the free movement of such data 36

Law The Modern Law ReviewOxford (2008) 71(3) 358-384

12 Impact of ethnic profiling on social and political life

It is important to bear in mind that the problem of ethnic profiling does not constitute

only a form of unlawful discrimination it also affects society in many different ways Former

MP in London Bernie Grant observed that ldquonothing has been more damaging to the relationship

between the police and black community than the ill-judged use of stop and search powersrdquo37

Indeed the misuse of such powers is not only a matter of illegality but it also has social and

political consequences

More importantly the discrimination suffered is not limited to the victimsrsquo feeling but it

impacts on race relations on the relationships between society and institutions racial minority

communities and the police and between individuals it reinforces stereotypes changes

perceptions and attitudes towards law enforcement agents and vice versa38

The literature identifies and reveals some of the main problems raised by this practice

Ethnic profiling affects directly the relationship between police and ethnic minorities and

indirectly it affects the relationship with the whole population These relationships influence the

credibility and the level of commitment that the local community will have to the local police

The already mentioned Macpherson report concluded that racial minority groups neither

trusted nor had confidence in the police But what exactly does it mean to say that people do not

trust in the police How does ethnic profiling affect this feeling of trust and confidence and why

is it important that people trust in the police

Shiner Michael National Implementation of the recording of police stops Great Britain Home Office London

UK 2006 38 Garrett Brandon Remedying Ethnic Profiling 33 Columbia Human Rights Law Rev 41 2001-2002 Pg 60

Political science studies have another language to discuss trust and confidence Studies

about police are in general concerned with police performance analysis To this extent research

has focused on the notion of legitimacy of the institutions According to these studies the

legitimacy of the police impacts on ldquopeoplersquos compliance with law their willingness to

cooperate with and assist the police and whether the public will empower the policerdquo39

Investigating the source of legitimacy the studies argue that the procedures and how the

public perceive them to be ndash fair or unfair ndash are more influential than assessments of the

effectiveness of police crime-control activities or judgments about the fairness of the police

distribution of services40

Moreover the trust and confidence in the police is generally low and

the studies suggest that this is related to the fairness of the procedures followed by the police

when exercising their authority41

How they exercise their powers will influence peoplesrsquo view of

the police and also of profiling practices42

Another study on legitimacy focused on comparing the influence of peoplersquos judgment

about the procedural justice of the manner in which the police exercise their authority and the

influence of peoplersquos instrumental judgments ndash understood as the risk of being caught police

performance against crime and the fairness of the distribution of police services The conclusion

based on a process-based policing model was that legitimacy influences peoplersquos reaction to the

police and what precedes legitimacy is the fairness of the procedures43

This means that police

will have a bigger public support according to peoplersquos ethical judgments about how they

exercise their obligation and responsibility

Sunshine and Tyler The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing

(2003) Pg 534 40

Tyler Tom R Policing in Black and White Ethinic group differences in trust and confidence in the Police (2005) 41

Tyler Tom and Cheryl Wakslak Profiling and Police legitimacy Criminology Volume 42 Number 2 2004 43

Sunshine Jason and Tom Tyler The Role of Procedural Justice and Legitimacy in Shaping Public Support for

Policing (2003)

With this discussion Sunshine and Tyler study complexifies the discussion on ethnic

profiling adding a phycology analysis that opposes lsquothe notion that if police are effectively

fighting crime the police will inevitably alienate the publicrsquo44

This observation supports the

argument that police should not adopt a crime-control model oriented only by crime reduction

and catching criminals but they also should care about safeguarding rights and freedoms by

ensuring respect towards the public

Thus from a policing perspective these studies are greatly useful once they indicate that

the police are primary responsible for their image among the community which shape their

perception and beliefs about the police based on previous personal experiences Sunshine and

Tyler observe that ldquopolice have more control over how they treat people than they do over the

crime raterdquo45

Many factors influence on incidence of crime and the police are unable to control

them However the police can fully control how they treat people and so act in a procedurally

fair manner and unbiased fashion

Accordingly biased policing which entails arbitrary decision and leads to the

discriminatory practice of ethnic profiling will impact not only on peoplersquos trust and confidence

in the police but also on police legitimacy which in turn will impact on peoplersquos compliance with

the law In other words if the police are not trusted the police legitimacy is low consequently

peoplersquos cooperation46

will be poor and eventually police efficiency will be affected

Policing (2004)Pg 535 45

The importance of voluntary cooperation with the policeis described by Tyler ldquoppublic behavior motivated by

trust is especially important and valuable to the legal system because it leads people to voluntarily cooperate with

the police Such voluntary cooperation is important because to the extent that people help the police because of their

own values society need not put its resources into supporting agents of social control Tyler (2001b) refers to a

society in which people are internally motivated to obey the law as a law-abiding society and this discussion

extends that argument to a society in which members of the public voluntarily cooperate with the policerdquo In Tyler

Tom R Policing in Black and White Ethinic group differences in trust and confidence in the Police(2005) Pg 338

Similarly the policing model called distributive justice model which focus on the fairness

of the distribution of police services also highlights the fundamental role of equality in police

services delivery This model explains low trust in the police by addressing the issue of

discriminatory policing in the delivery of police services From a social science perspective ldquothe

distributive component of service delivery is central to public views of the police (Sarat 1977)

with equal treatment of all people and groups being the key to trust in the policerdquo47

Apart from the legitimacy perspective ethnic profiling also impacts on peoplersquos beliefs

about public safety and the notion of risk and danger If the police target specific groups ndash

minorities ndash then the general public will perceive them as a threat just like the police do The

result of such a policy will be promotion and reinforcement of stereotypes which in turn generate

a bigger insecurity feeling and harm the relations among citizens since the majority of the

population will conceive minority groups as suspects and dangerous

Analyzing the persistence of racism in the police culture we will see that it is also related

to the previously mentioned findings that inform that trust is influenced by personal experiences

of people Shiner observes that ldquothe legitimation of stop and search as a means of policing of

dangerous populations means that predominantly white officers routinely meet members of black

communities in confrontational situations while rarely doing so outside of law-enforcement

situations which makes them particularly susceptible to stereotypingrdquo48

A study on subjective experiences of profiling discusses how people understand and

explain profiling The study demonstrates that both white and nonwhite groups recognize that the

police engage in profiling and it has a negative impact on legitimacy for both groups However

Tyler Tom R Policing in Black and White Ethinic group differences in trust and confidence in the Police (2005)

Pg 326 48

Shiner Michael Presentation about Organizational strategies for change and regulation In Roundtableon Current

DebatesResearch Agendas and Strategies to Address EthnicRacial Profiling in the UK and USA OSFJohn Jay

College of Criminal Justice August 2011

white groups generally regard profiling as a neutral crime fighting strategy while nonwhite

groups fell the police are acting out of prejudice49

These findings support Banks discussion about the irrationality claim of profiling and the

problems affecting all race relations Considering the already existent social and economic

disadvantages faced by racial minorities they also are subjected to different experiences with law

enforcement officers what increases the differences and the gap between these groups of society

In this context Banks talks about racial justice and suggests that the debate should focus

on race-related consequences of the war on drugs50

instead of focusing on racial profiling which

burdens the innocent lsquomidle-class peoplersquo Moreover according to his reading of the scenario

there is a problem in the debate on racial profiling He argues that concerns with racial profiling

are minimizing and reducing the complex and long term discussion about questions of race and

policing

He states that ldquowhile the studies findings do not refute the existence of irrational

profiling they are also consistent with the possibility that the extensive investigation of racial

minorities reflects their higher rates of criminal activity along with officers rational use of racial

profilingrdquo51

Besides Banks says that even if there was no racial profiling and if data could prove

it there would be no guarantee that problems associated with profiling ndash tension between

minorities and police officers and the investigation and mistreatment of ethnic minorities ndash

would disappear I agree with Banks point however I believe ethnic profiling is a species of the

Tyler Tom and Cheryl Wakslak Profiling and Police legitimacy (2004) Pg 275 50

Banks talks about the specific context of war on drugs but it can also be expanded to the general law

enforcement scenario considering the extension of the drug problem and the impact of these crimes in the

justice system (police actions and prisional system) Banks Richard Beyond Profiling Race Policing and the

Drug War Stanford Law Review Vol 56 No 3 pp 571-603 Dec 2003 51

Banks Richard Beyond Profiling Race Policing and the Drug War (2003) Pg 572-573 Special Raporteur

Leiumlla Zerrougui also provoke this reflection in the Progress Report on Administration of Justice Rule of Law and

Democracy Discrimination in the Criminal Justice system (2005)

big racial related problem and by focusing on this specific issue we will be able to advance

towards racial justice

Chapter 2 - International Standards regarding discrimination

Few studies debate the international legal status of ethnic profiling This might be

justified by the fact that ethnic profiling as a police strategy explicitly or unwittingly is a matter

of domestic interest and thus national law will regulate and address the issue However although

measures to ensure the combating of racism discrimination and xenophobia should be created

inside the national framework it is important to bear in mind that international laws are often

key in the process of increasing national standards and often contribute for the better regulation

of domestic issues

In this sense this chapter intends to look at the international legal framework and to

verify to what extend these instruments can contribute to combating ethnic profiling by police or

to what extend they prevent ethnic profiling from happening It is also analyzed if international

legal framework provides for prohibition of discrimination in relation to law enforcement

institutions and agents behaviors and if it supports the necessity of monitoring police actions in

order to prevent discriminatory conduct

21 United Nations level

Article 1(1) of the International Convention on the Elimination of all Forms of Racial

Discrimination provides for its own definition of what is considered to be racial discrimination

ldquoArticle 1

In this Convention the term racial discrimination shall mean any distinction

exclusion restriction or preference based on race colour descent or national or ethnic

origin which has the purpose or effect of nullifying or impairing the recognition

enjoyment or exercise on an equal footing of human rights and fundamental freedoms

in the political economic social cultural or any other field of public liferdquo

The wide coverage of such definition presents both positive and negative aspects It is

positive because it comprises many discriminatory circumstances but at the same time it provides

for little clarification

The main international legal instrument the International Covenant on Civil and Political

Rights (ICCPR) calls for the States obligation to ensure peoplersquos rights without distinction of

race religion or national origin Article 2(1) of the ICCPR provides a general equality rule

regarding the enjoyment and exercise of the fundamental rights therein It says

ldquoEach State Party to the present Covenant undertakes to respect and to ensure to all

individuals within its territory and subject to its jurisdiction the rights recognised in the

present Covenant without distinction of any kind such as race colour sex language

religion political or other opinion national or social origin property birth or other

statusrdquo

Article 26 of the ICCPR broadens the coverage of Article 2 according to General

Comment 18 of the Human Rights Committee Article 26 states

ldquoAll persons are equal before the law and are entitled without any discrimination to the

equal protection of the law In this respect the law shall prohibit any discrimination

and guarantee to all persons equal and effective protection against discrimination on

any ground such as race colour sex language religion political or other opinion

national or social origin property birth or other statusrdquo

The Human Rights Committee in General Comment 18 clarifies that Article 26 is not

duplicating the guarantee of Article 2 of the ICCPR Instead Article 26 provides an autonomous

right that prohibits discrimination in law or in fact in any field regulated and protected by public

authorities Article 26 demands that the States parties have the obligation to ensure that the

legislation adopted by States parties comply with the requirement of article 26 that its content

should not be discriminatory In other words ldquothe application of the principle of non-

discrimination contained in article 26 is not limited to those rights which are provided for in the

Covenantrdquo52

but they concern every law and its application

These provisions supported a Spanish case brought before the United Nations Human

Rights Committee In the Rosalind Williams case ethnic profiling was practiced in the context of

immigration control The UN body recognized the irregularity of a police control based on

physical and ethnic characteristics

The case was submitted to the Human Rights Committee by Ms Rosalind Williams53

under the Optional Protocol to the ICCPR Ms Williams claimed to be victim of violation by

Spain of article 12 paragraph 1 (right to liberty of movement) and article 26 (prohibition of

discrimination) read in conjunction with article 2 of the ICCPR She was approached by a

police officer in a train station in Valladolid shortly after she got off the train She was

accompanied by her husband and son who were not stopped by the police When she asked the

officer why she was being checked the officer said that the ldquoNational Police were under orders

from the Ministry of the Interior to carry out identity checks of lsquocoloured peoplersquo in particularrdquo54

During the domestic procedures the National High Court considered that the police

officerrsquos behavior was supported by the legislation on foreigners The law obliged officers to

identify foreigners at the train station The Constitutional Court also dismissed the application

They did not identify any racial prejudice in the discriminatory policy and stated ldquothe police

took the criterion of race merely as indicating a greater probability that the person concerned was

not Spanish None of the circumstances (hellip) suggest that the National Police officerrsquos conduct

Human Rights Committee General Comment 18 Non-discrimination (Thirty-seventh session 1989) Compilation

of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies UN Doc

HRIGEN1Rev1 at 26 (1994) 53

Views of the Human Rights Committee under Article 5 paragraph 4 of the Optional Protocol Communication

No 14932006 CCPRC96D14932006

Available at httpwwwopensocietyfoundationsorgsitesdefaultfilesdecision-en_20090812pdf 54

No 14932006 CCPRC96D14932006

was dictated by racial prejudice or any particular intolerance of members of a specific ethnic

grouprdquo55

The UN Human Rights Committee considered that targeting some people because of their

physical characteristics amounts to a violation of dignity and also contributes to spread

xenophobic attitudes

ldquoidentity checks carried out for public security or crime prevention purposes in general

or to control illegal immigration serve a legitimate purpose However when the

authorities carry out such checks the physical or ethnic characteristics of the persons

subjected thereto should not by themselves be deemed indicative of their possible illegal

presence in the country Nor should they be carried out in such a way as to target only

persons with specific physical or ethnic characteristics To act otherwise would not only

negatively affect the dignity of the persons concerned but would also contribute to the

spread of xenophobic attitudes in the public at large and would run counter to an

effective policy aimed at combating racial discriminationrdquo56

Thus they concluded that Ms Williams was singled out for the identity checks on the

basis of her racial characteristics The criteria of reasonableness and objectivity generally used

to assess the legitimacy of the differentiation of treatment were not met in the case

This case raised an important question concerning the endorsement by the state of a

discriminatory operation When the National Court argued that race were only an indicator

allowing officers to rely on race to make a decision it is possible to see how rooted and deep

ethnic profiling is in that state structure In that case Ms Williams faced both formal and

informal ethnic profiling considering that the profiling practice revealed to be a state policy

The case can also be used to discuss the state obligation to guarantee protection against

racial discrimination and to produce data and make it available In the referred case the litigants

relied on data produced by human rights organizations to support their argument since there was

No 14932006 CCPRC96D14932006 Pg 4 56

No 14932006 CCPRC96D14932006 Pg 10

no government data available in terms of racial and ethnic discrimination what made even harder

to prove the alleged ethnic profiling

The argument presented by the Spanish National High Court is illustrative of the traps

presented by common sense arguments like that one The color of people was used in a

disengaged way and its use was mentioned as if it constituted a non-biased and objective law

enforcement strategy which had no implication on race relations or consequences for racial

minorities

Articles 2 and 5 of the International Convention on the Elimination of all Forms of Racial

Discrimination impose obligations to the states parties who undertake to prevent eliminate and

protect from racial discrimination Recognizing the challenge faced by States Parties to

effectively address the issue the provisions state that States shall lsquoundertake to pursue by all

appropriate means and without delay a policy of eliminating racial discrimination in all its forms

and promoting understanding among all racesrsquo To achieve this States shall not engage in act or

practice of racial discrimination and shall lsquotake effective measures to review governmental

national and local policies and to amend rescind or nullify any laws and regulations which have

the effect of creating or perpetuating racial discrimination wherever it existsrsquo57

More importantly Article 2 observes that the measure taken to prevent and ensure the

adequate protection to racial groups lsquoshall in no case entail as a consequence the maintenance of

unequal or separate rights for different racial groups after the objectives for which they were

taken have been achievedrsquo58

Article 2 of the International Convention on the Elimination of All Forms of Racial Discrimination United

Nations adopted 21 December 1965 Entry into force 4 January 196 58

Nations adopted 21 December 1965 Entry into force 4 January 1969

Article 5 also ensures the lsquoright to equal treatment before the tribunals and all other

organs administering justice and the right to freedom of movement and residence within the

border of the Statersquo59

Some of the general terms of the Conventions are discussed in a more detailed manner in

the General Recommendations formulated by the Committee on the Elimination of Racial

Discrimination The General Recommendation XXXI provides for interpretation of articles 1 5

and 6 of the Convention and addresses the issue of racial and ethnic discrimination in the

administration and functioning of the criminal justice system

Because of its nature the general recommendation does not have the same binding force

and power of the Convention In fact General Recommendation XXXI has no enforcement

capacity However it is a very useful instrument and precise in pointing to the problems and

proposing steps to be taken in order to eliminate the discrimination in the justice system and so

in the police

The General Recommendation XXXI which will be further discussed proposes steps to

be taken in order to better gauge the existence and extent of racial discrimination in the

administration and functioning of the criminal justice system the search for indicators attesting

to such discrimination strategies to be developed to prevent racial discrimination in the

administration and functioning of the criminal justice system steps to be taken to prevent racial

discrimination with regard to victims of racism reporting of incidents to the authorities

competent for receiving complaints and steps to be taken to prevent racial discrimination in

regard to accused persons who are subject to judicial proceedings60

General recommendation XXXI on the prevention of racial discrimination in the administration and functioning of

the criminal justice system UN CERD 2005

Another relevant important instrument is the UN Code of Conduct for Law Enforcement

Officials (1979) The Code provides that law enforcement officials shall protect human dignity

and uphold human rights of all persons61

The Code also observes the need for a procedure in

which officials can report to their superiorsrsquo eventual violation of peoplersquos rights

The UN Human Rights Standards for Law Enforcement compiles the most important

rules for law enforcement officials to follow to act within the limits of human rights They

provide for eight general rules related to non-discrimination the most specific one being ldquoAll

persons are equal before the law and are entitled without discrimination to equal protection of

the lawrdquo and in protecting and serving the community ldquopolice shall not unlawfully discriminate

on the basis of race gender religion language colour political opinion national origin

property birth or other statusrdquo62

22 European level

Before looking into the European legal framework regarding racial discrimination it is

worth noting that ethnic profiling is very under-reported in Europe The EU Agency for

Fundamental Rights even stated that ldquothe UK has been addressing discriminatory ethnic profiling

since the 1980s and as a result has built up a strong research basis as well as numerous policy

responses to the issue However the recognition of discriminatory ethnic profiling practices has

not been afforded as much attention in other EU member Statesrdquo63

Code of Conduct for Law Enforcement Officials Adopted by General Assembly resolution 34169 of 17

December 1979 Available at httpwwwohchrorgENProfessionalInterestPagesLawEnforcementOfficialsaspx 62

International Human Rights Standards for Law Enforcement - A Pocket Book on Human Rights for the Police

United Nations High Commissioner for Human Rights Centre for Human Rights 63

Towards More Effective Policing Understanding and Preventing Discriminatory Ethnic Profiling A Guide

European Union Agency for Fundamental Rights Publications Office of the European Union 2010

Although ethnic profiling is under-reported in Europe the fact that Europe has a strong

Human Rights Court makes them an interesting continent to be studied Regional instruments

like the European Convention on Human Rights also provide for rules against discrimination

They are instruments with more advanced enforcement machinery64

if compared to the UN

system and so their provisions are essential for the improvement of discriminatory policing

situations in the Member States Case law from the European Court of Human Rights helps to

identify the reach of the provision protecting rights and freedoms of the Convention

The European Convention on Human Rights did not provide for a general prohibition of

discrimination for a long time Article 14 that expressly addresses the prohibition of

discrimination is accessory of the other substantives guaranteed rights Although the ECHR was

formulated after the biggest discriminatory catastrophe of all times it was only in 2000 that a

prohibition of discrimination clause was introduced in the Convention through the Protocol 12 65

The Court observed that the notions of discrimination prohibited by Article 14 and by

Article 1 of Protocol No 12 are to be interpreted in the same manner66

According to the

Explanatory Report on Protocol No 12 Article 1 adds protection but do not change the meaning

of discrimination established by Article 14 of the ECHR Explanatory Report paragraph 18

ldquoThe notion of discrimination has been interpreted consistently by the European Court

of Human Rights in its case-law concerning Article 14 of the Convention In particular

this case-law has made clear that not every distinction or difference of treatment

amounts to discrimination As the Court has stated for example in the judgment in

Buergenthal Thomas The American and European Conventions on Human Rights Similarities and Differences

American University Law Review 30 Am U L Rev 155 1980-1981 65

Article 14 of ECHR - Prohibition of discrimination ldquoThe enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground such as sex race colour language religion

political or other opinion national or social origin association with a national minority property birth or other

statusrdquo

Article 1 of Protocol no 12 - General prohibition of discrimination ldquo1 The enjoyment of any right set forth by law

shall be secured without discrimination on any ground such as sex race colour language religion political or

other opinion national or social origin association with a na-tional minority property birth or other status 2 No

one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1rdquo 66

Sejdić and Finci v Bosnia and Herzegovina [GC] - 2799606 and 3483606Judgment 22122009 [GC]

the case of Abdulaziz Cabales and Balkandali v the United Kingdom a difference of

treatment is discriminatory if it lsquohas no objective and reasonable justificationrsquo that is if

it does not pursue a lsquolegitimate aimrsquo or if there is not a lsquoreasonable relationship of

proportionality between the means employed and the aim sought to be realisedrsquo (judg

of 28 May 1985 Series A No 94 paragraph 72) The meaning of the term

discrimination in Article 1 is intended to be identical to that in Article 14 of the

Conventionrdquo67

Accordingly the additional scope of protection includes discrimination committed by a

public authority in the exercise of discretionary power and by any other act or omission by a

public authority

Article 14 of the ECHR was discussed in conjunction Article 2 of Protocol No 4 of the

ECHR in Timishev v Russia where the Court concluded that ldquosince the applicants right to

liberty of movement was restricted solely on the ground of his ethnic origin that difference in

treatment constituted racial discrimination within the meaning of Article 14 of the

Conventionrdquo68

The case challenged a Russian police policy of excluding Chechens from a

particular area The applicant alleged that he was barred from entering an administrative region

because of his Chechen ethnicity which oriented the Russian police officerrsquos action

According to the Courtrsquos assessment if there is no objective and reasonable justification

to submit persons in a similar situation to different treatments then it constitutes discrimination

However further in the decision the Court enhances the standard and states that a decision that

results in different treatment based on a personrsquos ethnicity is not capable of being objectively

justified

ldquoRacial discrimination is a particularly invidious kind of discrimination and in view of

its perilous consequences requires from the authorities special vigilance and a vigorous

reaction (hellip) The Court considers that no difference in treatment which is based

exclusively or to a decisive extent on a persons ethnic origin is capable of being

Explanatory Report on Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental

Freedoms Council of Europe 68 Timishev v Russia European Court of Human Rights Applications nos 5576200 and 5597400 Judgement 13

December 2005

objectively justified in a contemporary democratic society built on the principles of

pluralism and respect for different culturesrdquo69

The impossibility of using ethnic origin as ground to impose different treatment is

therefore clearly stated by the Court However in terms of discrimination based on other

grounds the European case law is controversial Although the ECHR seems to be sufficiently

broad the application of its provision not always gives protection against discriminatory acts In

Abdulaziz and Others v United Kingdom70

decided in 1985 the Court assessed a potential

violation of Article 14 combined with Article 8 of the Convention As quoted in the Explanatory

Report on Protocol No 12 the European Court of Human Rights presented a more permissive

view regarding the use of ethnicity and similar criteria The Court stated that when giving

different treatments the state should pursue legitimate aims or observes a reasonable relationship

of proportionality between the means employed and the aim sought to be realized

The court then recognized that ldquostates enjoy a certain margin of appreciation in assessing

whether and to what extent differences in otherwise similar situations justify a different

treatment in lawrdquo but also observed that the Court should give the final ruling in this respect

When assessing the immigration rules of that case which purpose was to curtail

primary immigration the Court observed that the rules did not impose restrictions on the

grounds of race colour or religion of the intending entrant but the state rather wanted to all

non-patrials However the Court showed no concern with the consequences of such rules and

despite the fact that they ldquoaffected at the material time fewer white people than othersrdquo the

Court considered this to be ldquonot a sufficient reason to consider them as racist in characterrdquo71

Timishev v Russia European Court of Human Rights Applications nos 5576200 and 5597400 Judgement 13

December 2005 70

Abdulaziz and Others v United Kingdom European Court of Human Rights Judgment of May 28 1985 71

Abdulaziz and Others v United Kingdom European Court of Human Rights Judgment of May 28 1985

Furthermore recently in the previously mentioned Cisseacute v France the Court dismissed

the application concerning a potential violation of Article 14 practiced by an operation that

filtered peopled based on the color of their skin because the checking of identities was intended

to ascertain the identity of persons suspecting of being illegal immigrants The Court found that

the French authorities had reasonable ground for suspecting the applicant and therefore did not

consider the application to be well founded Obviously in that case ethnic profiling was

practiced regarding the different treatment given to white and non-white people but the issue

was not discussed as it goes beyond the individual case of the applicant Cissegrave

It is important noting that the circumstances of the case in another core element to

indicate the Courtrsquos view In both Abdulaziz and Others v United Kingdom and Cissegrave v France

the Court faced immigration situations what indicates that there might be a different standard

applied for each situation In these cases the discussion was not about the legitimacy if the use

of race or ethnic grounds instead the Court assessed if the decisions taken by the states was

based on race or ethnic ground Once they affirmed that the state authorities did not rely on race

and ethnic criteria then the discrimination issue is set aside

A report on ethnic profiling in the European Union produced by Open Society Justice

Initiative compiles European case law standards and presents the scrutiny tests imposed by the

Court to allow ethnic profiling which are based in a legitimate different of treatment These tests

suggests that the ECtHR does not fully prohibit the practice of ethnic profiling but instead it

believes that not all forms of ethnic profiling are discriminatory or not justifiable and privileges

the assessment of case by case Accordingly there are three tests effectiveness proportionality

and necessity72

Reducing Ethnic profiling in the European Union A handbook of good practices Open Society Justice Initiative

Effectiveness values objective statistical information that can build a link ldquobetween the

ethnic criteria employed and the probability that persons captured by the profile committed or

planned to commit the offense in questionrdquo The proportionality test requires an assessment of

the ldquobenefits derived from using ethnic criteria in terms of increasing law enforcement

efficiency outweigh the harm done through the real or perceived discriminatory impacts of the

profile on the targeted individuals or groupsrdquo73

And necessity requires that the results achieved

by ethnic profiling could not have been achieved by using another means or a non-

differentiating approach

Apart from the ECHR there is an EU Directive on principle of equal treatment between

persons irrespective of racial or ethnic origin74

which reinforces the existing law on racial

discrimination This EU Directive purpose is to ldquolay down a framework for combating

discrimination on the grounds of racial or ethnic originrdquo75

Nevertheless the EU Directive focus

on social protection and does not address equality of treatment in law enforcement or

administration of justice situations

The Council of Europe provided for guidance to the police which addressed

discrimination issues In 1979 a resolution on the Declaration of the Police was published by the

Parliamentary Assembly of the Council of Europe The Declaration required legislation to

ldquoprovide for a system of legal guarantees and remedies against any damage resulting from police

activitiesrdquo and also stated that ldquoa police officer shall receive thorough general training

2002 Pg 193 74

Council Directive 200043EC of 29 June 2000 implementing the principle of equal treatment between persons

irrespective of racial or ethnic origin 75

irrespective of racial or ethnic origin Article 1 ldquothe purpose of this Directive is to lay down a framework for

combating discrimination on the grounds of racial or ethnic origin with a view to putting into effect in the Member

States the principle of equal treatmentrdquo

professional training and in-service training as well as appropriate instruction in social

problems democratic freedoms human rights and in particular the European Convention on

Human Rightsrdquo76

Moreover in 2001 the Committee of Ministers of the Council of Europe adopted the

European Code of Police Ethics77

which established principles for police practices and codes of

conducts guided by principles of impartiality and non-discriminations in the State Members This

Code of Police Ethnic also highlights the need for accountability mechanisms and states that

police shall be subject to external control State control of the police shall be divided between the

legislative the executive and the judicial powers

The Code however does not address the fundamental issue of data gathering like the

International Human Rights Standards for Law Enforcement and the General Recommendation

XXXI of CERD do The Code instead makes sure to reinforce the need to observe international

data protection principles to collect storage and use of personal data but it does not make any

remark concerning the need to have comprehensive and precise information about police work

and this includes the collection and storage of personal data

23 Recommendations to address ethnic profiling

As far as ethnic profiling by police is concerned the UN CERD General

Recommendation XXXI provides many recommendations that encompass several aspects of the

Declaration of the Police Resolution 6901979 Parliamentary Assembly of the Council of Europe See at

httpassemblycoeintDocumentsAdoptedTextta79ERES690htm 77

European Code of Ethics Recommendation Rec(2001)10 of the Committee of Ministers Council of Europe

Relevant points ldquo26 Police training which shall be based on the fundamental values of democracy the rule of law

and the protection of human rights shall be developed in accordance with the objectives of the police 40 The

police shall carry out their tasks in a fair manner guided in particular by the principles of impartiality and non-

discrimination 42 The collection storage and use of personal data by the police shall be carried out in accordance

with international data protection principles and in particular be limited to the extent necessary for the performance

of lawful legitimate and specific purposesrdquo

problem Point 1 proposes the use of indicators of racial discrimination These would be able to

indicate the extension of the problem by exposing the reality through the analysis of data and

processed information The recommendation suggests that the state should pay attention to (a)

the percentage of persons affected by discriminatory conduct (b) the number of complaints

keeping in mind that this information in itself does not provide any conclusion considering that a

small number can reveal the peoplersquos lack of information concerning their rights fear of

reprisals lack of trust in the public institutions (c) information regarding police officers and

minorities groups behaviors (d) diversity among the public agents the ranks of the police should

have a significant representation of persons belonging to ethnic minorities groups78

I believe these indicators are key for planning of a policy that aims to combat ethnic

profiling The recommendations on the use of indicators of racial profiling bring implied with

their elements the necessity of gathering and producing data as observed by the Committee on

the Elimination of Racial Discrimination when reporting on Spain

If we confront the mentioned indicators with the Spanish situation after the UN Human

Rights Committee decision in the Williams case we see that the old scenario has not changed In

2011 the Committee on the Elimination of Racial Discrimination verified that the same issue is

still in practice in Spain They stated that ldquolos controles de identificacioacuten o redadas policiales

basados en perfiles eacutetnicos y raciales realizados en lugares puacuteblicos y barrios donde hay una alta

concentracioacuten de extranjerosrdquo79

They also highlighted the lack of statistical data about ethnic and

the criminal justice system UN CERD 2005 79

The identity checks or police stops and searchs based on ethnic and racial profiles happen in public places and

neighborhoods where there is a high concentration of foreigners (my translation) Concluding Observations of the

Committee on the Elimination of Racial discrimination CERDCESPCO18-20 March 2011 See at

httpwww2ohchrorgenglishbodiescerddocscoSpain_AUV_sppdf

racial composition of the population and foreigner like recommended by the General Recommendation

According to the Committee the lack of statistical data contributes to discriminatory actions

Furthermore in 2013 the UN Special Rapporteur identified ethnic profiling still as a

challenge to be overcome The report indicated that in 2011 the Spanish Ombudsperson received

a high number of complains concerning the abusive use of identify checks against foreign

nationals He observed that the law governing the issue are not enough and do not provide for

sufficient safeguards to prevent it from happening81

Some progress was observed though An important difference from Williams case is

observed in the governmentrsquos attitude towards ethnic profiling According to the Special

Rapporteur the governments acknowledge it as a problem He was informed that there are

ongoing training programmes ldquoto sensitize the police on discrimination and the development of

good practices related to policecommunity relations and ethnic profiling reduction in some parts

of Spainrdquo82

Another important recommendation addresses the need for adequate legislation which

will provide a legal framework that will give support to initiatives that aim to eliminate ethnic

profiling practices General Recommendation XXXI point 4 a and General Recommendation

35 are concerned with the criminalization of racism83

It is important to notice however as

previously stated that racial profiling has many roots and although its practice might be

80 General Recommendation 24 Information on the demographic composition of the population UN Committee on

the Elimination of Racial Discrimination 1999 81

Organic Law 11992 on the protection of public safety of 21 February 1992 Organic Law 42000 on the rights

and freedoms of foreigners in Spain and their social imtegration also contains provisions on identity controls

Criticism is also addressed to the instrument regulating police practices Circular 22012 of the General Directorate

of Police adopted on 20 May 2012 82

Report of the Special Rapporteur on contemporary forms of racism racial discrimination xenophobia and related

intolerance by the Special Rapporteur Mutuma Ruteere Visit to Spain (2013) 83

General recommendation XXXI on the prevention of racial discrimination in the administration and functioning

of the criminal justice system UN CERD 2005 and General recommendation No 35 on Combating racist hate

speech CERDCGC35 2013

explained by the presence of racism it is possible that such practice is not based on racism For

this reason as far as ethnic profiling by police is concerned an efficient accountability system in

conjunction with rules precisely tight might be better in terms of results than criminalizing acts

of racism84

In relation to prevention of racial discrimination the general recommendation observes

the need for ldquoeducation programmes training in respect for human rights tolerance and

friendship among racial or ethnic groups as well as sensibilization to intercultural relations for

law enforcement officialsrdquo and fosters dialogue between the police and the groups that are

discriminated against85

Two other important aspects of the General Recommendation XXXI deal with first the

obligation of the states to provide an effective remedy for the victims of discriminatory acts and

also to facilitate their access to justice and secondly with the rights and autonomy of police

officials who have to be in a position that allows them to refuse to obey illegal and

discriminatory orders or instructions

One specific recommendation made by the CERD in the occasion of the General

Recommendation XXXI sums everything that is needed for a successful strategy to eliminate

structural racial discrimination that is the case of profiling by police Point 5 (i) says

ldquoTo implement national strategies or plans of action aimed at the elimination of

structural racial discrimination These long-term strategies should include specific

objectives and actions as well as indicators against which progress can be measured

They should include in particular guidelines for prevention recording investigation

and prosecution of racist or xenophobic incidents assessment of the level of satisfaction

among all communities concerning their relations with the police and the system of

It is worth noting that I am not denying the importance and signification of the criminalization of racist actions

However with regards to the elimination of ethnic profiling and considering how hard it is to prove such practice

the crime of racism is of little help Its biggest contribution would be to affirm the wrongness of a racist act 85

the criminal justice system UN CERD 2005Recommendation 5 b and c

justice and recruitment and promotion in the judicial system of persons belonging to

various racial or ethnic groupsrdquo86

The Programme of Action that resulted from the World Conference against Racism

Racial Discrimination Xenophobia and Related Intolerance that took place in Durban in 2001 is

the only documents to expressly mention racial profiling Many of the actions proposed are

relevant for the elimination of ethnic profiling

Although the Programme of Action addresses expressly racial profiling it is questionable

if it does in a satisfactory way since it covers only criminal justice situation - investigatory

activities or for determining whether an individual is engaged in criminal activity While point

70 enunciates the need for lsquoconstitutional legislative and administrative measures to foster

equality among individuals and groups of individuals who are victims of racism racial

discrimination xenophobia and related intolerancersquo87

and point 71 points out the necessity of

implementation of accountability systems lsquofor misconduct by police officers and other law

enforcement personnel which is motivated by racism racial discrimination xenophobia and

related intolerance and to prosecute perpetrators of such misconductrsquo point 72 reduces the

concept of racial profiling when it states

ldquoUrges States to design implement and enforce effective measures to eliminate the

phenomenon popularly known as ldquoracial profilingrdquo and comprising the practice of

police and other law enforcement officers relying to any degree on race colour

descent or national or ethnic origin as the basis for subjecting persons to investigatory

activities or for determining whether an individual is engaged in criminal activityrdquo88

In the above quoted point the Programme of Action calls States to react on ldquoracial

profilingrdquo practices but presents a problematic and inconclusive definition of racial profiling

Point 70 Programme of Action World Conference against Racism Racial Discrimination Xenophobia and

Related Intolerance Durban 2001 88

Programme of Action World Conference against Racism Racial Discrimination Xenophobia and Related

Intolerance Durban 2001

when it relates the term to the reliance to any degree on race colour descent or national or

ethnic origin as the basis for specific purposes - to investigatory activities or for determining

whether an individual is engaged in criminal activity For instance according to this definition

immigration cases like the Spanish case above explored would not consist of racial profiling

In the European level two main instruments provide for recommendations concerning

police activities ndash Recommendations on Policing in Multi-Ethnic Societies from the

Organization for Security and Co-operation in Europe and General Policy Recommendation No

11 on Combating Racism and Racial Discrimination in Policing from the European Commission

against Racism and Intolerance89

Both instruments expressly confront the problem of racial

profiling

Paragraph 1 of OSCE recommendations highlights the importance of recognizing that

policing affects inter-ethnic relations and calls States to adopt policies ldquoto promote the

integration of minorities at national and local levelsrdquo90

And in paragraph 16 OSCE

recommends measure such as codes of conduct regulating operational practices to be taken in

order to prevent from discriminatory policing

Though OSCE recommendations do not expressly propose a data gathering system or a

recording of police activities Explanatory Notes of paragraph 16 indicates in accordance with

Statersquos obligation under the European Convention on Human Rights and the International

Convention on the Elimination of Racial Discrimination the need for an ldquoethnic monitoring of

the outcomes of police operations in order to identify whether or not discrimination is taking

OSCE Recommendations on Policing in Multi-Ethnic Societies Organization for Security and Co-operation in

Europe February 2006 and ECRI General Policy Recommendation No 11 on Combating Racism and Racial

2007 90

Europe February 2006 paragraph 1

placerdquo and whether or not lsquostop and searchrsquo impact fairly and proportionately on different ethnic

groups91

The ECRI Recommendation 11 is more precise regarding the monitoring activity Point 2

recommends States to ldquocarry out research on racial profiling and monitor police activities in

order to identify racial profiling practices including by collecting data broken down by grounds

such as national or ethnic origin language religion and nationality in respect of relevant police

activitiesrdquo92

and point 12 is even more explicit to state the need for the establishment and

operation of a system for recording and monitoring racist incidents

Duly Recommendation 11 also provides for recommendations in many other topics such

as ldquomeasures to make the police aware of the fact that acts of racial discrimination and racially-

motivated misconduct by the police will not be toleratedrdquo ldquomechanisms for victims of racial

discrimination or racially-motivated misconduct by the policerdquo ensuring ldquoeffective

investigations into alleged cases of racial discriminationrdquo and the recruitment of members of

under-represented minority groups in the police93

Europe February 2006 92

Council of Europe European Commission against Racism and Intolerance June 29 2007 Points 7 89 17

Chapter 3 - Limiting Police Discretion

As seen there is an extensive international legal framework regarding the prohibition of

discrimination However as far as ethnic profiling is concerned alongside with anti-

discrimination norms it is requires that states take measures to ensure the respect for those law

In this regard another important element ndash discretionary police powers ndash has to be regulated in

order to balance police work in terms of achieving their aims ndash maintenance of public order and

peace and crime control ndash while ensuring respect for human rights

When exercising their functions police can decide whom to stop and search or ask for

identification For this reason there is a direct relation between this discretionary power and

ethnic profiling since the former happens when the discretionary power is misused Of course if

we deal with formal ethnic profiling and a state planned operation the debate will not mainly be

around the discretionary power once the police officers are obeying superior order Nevertheless

every informal ethnic profiling situation involves police abusive use of discretion

The police are responsible for the selection of who will be stopped sanctioned arrested

or ignored thereby their actions are the ones that define the profile of the people subjugated to

the criminal justice system Some would even argue that society has trusted to the police the

biggest part of social control functions and so police decisions impact on the political field94

considering the political power police have when interacting with the community

Assuming that effective law enforcement activities require discretionary decision-making

powers ndash it is even argued that stop and search is a fundamental investigative police tool ndash the

lsquoJ Empey American Delinquecy Its Meaning and Construction The Dorsey Press 1978rsquo In Dias Jorge de

Figueiredo e Manuel da Costa Andrade Criminologia O homem delinquent e a sociedade criminoacutegena Coimbra

Editora 1997 Pg 443

question raised then concerns constraints and how we can ensure that this discretionary power

will be fairly and correctly used

The question posed is challenging because it requires technical knowledge in different

areas as the discretionary power does not only concern stop and search powers or ethnic profiling

practices but it is related to the notion of policing and the nature of some state function In fact it

is the nature of police work to ldquomake a choice among possible courses of action or inactionrdquo95

Thus it is not possible to reduce some functions that involve decision making to a Cartesian

exercise

Furthermore it is unthinkable to write down in law a list of every single possibility in

which police officers can act and how they should act Besides it is also doubtful that society

would want to have a police that cannot assess risk make judgments and independently take

decision Therefore there must be legal general but precise enough standards to limit police

powers and specially stop and search powers

Accordingly the Canadian Supreme Court even states that ldquoa system that attempted to

eliminate discretion would be unworkably complex and rigidrdquo96

Moreover discretion is

necessary because resources are scarce and so the police need to establish priorities For this

reason the discussion cannot be polarized putting in one side the no discretion at all and in the

other limitless discretion

This power is essential to see why the argument presented by some of those who argued

in favor of ethnic profiling is so fragile Those who believe that the disproportion of the use of

police powers among different ethnic or racial groups can be rationally justified often rely on the

Definition of discretion by David KC (In Discretionary Justice A Preliminary Inquiry) quoted in Bronitt Simon

and Philip Stenning Understanding discretion in modern policing Criminal Law Journal 35 Crim LJ 319 2011 96

R v Beare [1998] 2 SCR 387 Canadian Supreme Court in Bronitt Simon and Philip Stenning Understanding

discretion in modern policing (2011)

disproportionality existent in crime and convictions rates between those groups The problem

with this understanding is that they ignore how influential police decisions are and the data are

not themselves impartial The police are the one deciding who they will stop or arrest where and

when they will patrol97

It is worth noting that this fact does not advocate for the futility of those

rates and data produced instead it reinforces the argument that to address ethnic profiling state

policy and society should be aware of how police behave as well as they should know well how

and over who police are exercising their powers

Therefore as expected those against ethnic profiling address the supposedly excessive

police discretion as a way of combating the practice I believe it is important to distinguish the

sociological approach to discretion which can be summarized in the police freedom to act

coercively and so eventually commit abuses and the legal and political approach that sees

discretion as an inherent aspect of police powers and encourages states to legally regulate and

create accountability mechanisms to address the so called freedom to act coercively

Special Reporteur Leila Zerrougui stated that the discrimination ascribed to the police

derives from various factors and among them she includes among the factors ldquothe range of

powers given the police to combat crime and ensure order and security the inadequate means put

at their disposal the type of supervision under which the police operate and the existence or

absence of efficient remedies and positive measures to prevent and punish violations of the rights

David Harris argues in this direction in relation to the racial breakdown of those involved in drug crimes

ldquoAfrican-Americans are just 12 of the population and 13 of the drug users but they are about 38 of all those

arrested for drug offenses 59of all those convicted of drug offenses and 63 of all those convictedfor drug

trafficking While only 33 of whites who are convicted are sent to prison 50 of convicted blacks are jailed(hellip)

the racial composition of prisons and jail populations or the racial breakdown of sentences for these crimes only

measures the actions of those institutions and individuals in charge it tells us nothing about drug activity itselfrdquo

Harris David The Stories the Statistics and the Law Why ldquoDriving While Blackrdquo Matters Minnesota Law

Review 84 Minn L Rev 265 1999-2000 Pg 295

of the most vulnerablerdquo98

But more importantly she complements the list by explaining that if

the police have broad discretionary powers and are the only authority responsible for

investigating their violations and abuses most probably the result will be assured impunity

I agree with the external accountability claim though I do not agree with the critique on

lsquothe range of powersrsquo which relates to police discretionary powers The problem is not about the

powers police have but it is about how they use their powers and what means are available to

ensure they will act in accordance with the law and use their power in a reasonable manner

Bronitt and Stenning suggest as the modern view tends to indicate that the exercise of

discretion has to be structured and so they propose administrative public guidelines just like the

UN Committee on the Elimination of Racial Discrimination99

The authors quote Galligan and

state that guidelines play important roles They can be (a) a ldquoyardstick for testing decisionsrdquo

what will reduce the reliance on improper arbitrary or discriminatory factors and (b) a way of

incentive to police officers to think more carefully and critically about their work objectives and

goals100

The next section explores this notion of a structuration of the exercise of police

discretionary powers European cases judged by the European Court of Human Rights and

national experiences ndash in the United States and the United Kingdom ndash are discussed and revealed

how the law ndash and the Courts and inquiries - contributed to the limitation of discretionary

powers

Progress Report on Administration of Justice Rule of Law and Democracy Discrimination in the Criminal Justice

system Ms Leiumlla Zerrougui UN Special Rapporteur (2005) Pg 14 99 General recommendation XXXI on the prevention of racial discrimination in the administration and functioning

of the criminal justice system UN CERD 2005 Paragraph 5 100

Bronitt Simon and Philip Stenning Understanding discretion in modern policing (2011)

31 European cases

As observed the Council of Europe enacted both the Declaration of the Police101

and the

These both documents do not expressly impose rules or

specific restrictions to police powers though they affirm the need to act in accordance with the

law to have police training and to provide for accountability and control systems against

damages resulting from police activities

Another instruments providing for some guidance is the Manual for Police Trainers

issued by the European Agency for Fundamental Rights103

This document discusses policing

from a human rights perspective but does not provide for a sharp structure to guide police

conduct

The mentioned instruments provide for some orientation regarding the use of police

powers but they do not clearly underline the reach and limits of those powers which are

constantly in conflict with other interests and sometimes rights and freedoms Nevertheless in

my view the case law of the European Court of Human Rights is a more fruitful source of that

type of guidance

Imagine a scenario where there is no requirement of reasonable suspicion limiting stop

and search powers In fact such scenario exists and raises concerns regarding the misuse of such

powers Malik v the UK and Gillian v the UK are cases brought before the European Court of

Human Rights to challenge counter-terrorism laws (Section 44 and Schedule 7) that authorize

public officers to stop people without having reasonable suspicion The cases discuss in some

extension the role of reasonable suspicion requirements

Declaration of the Police Resolution 6901979 Parliamentary Assembly of the Council of Europe 102

European Code of Ethics Recommendation Rec(2001)10 of the Committee of Ministers Council of Europe 103

Fundamental rights-based police training A Manual for Police Trainers European Union Agency for

Fundamental Rights 2013

In Malik v the UK which has not been decided yet the applicant challenges Schedule 7

to the Terrorist Act 2000 According to its paragraph 2 examining officers can stop or detain a

person to question without having grounds for suspicion A Code of Practice has been issued and

Paragraph 10 says that ldquoexamining officers should therefore make every reasonable effort to

exercise the power in such a way as to minimize causing embarrassment or offence to a person

who is being questionedrdquo104

This provision contorts the notion of reasonableness that should guide law enforcement

officers conduct and be an stimulator to reasonable behavior It is interesting to note that

although the law allows officers to act without reasonable suspicion the state recognizes the risk

of discriminatory use of those powers The Notes for guidance on paragraph 10 highlights

ldquoThe powers must be used proportionately reasonably with respect and without

unlawful discrimination All persons being stopped and questioned by examining

officers must be treated in a respectful and courteous manner

Examining officers must take particular care to ensure that the selection of persons for

examination is not solely based on their perceived ethnic background or religion The

powers must be exercised in a manner that does not unfairly discriminate against

anyone on the grounds of age race colour religion creed gender or sexual

orientationrdquo

Unfortunately the Court has not yet pronounced about the merits of this particular case

and declared the application admissible However a study report produced by the Equality and

Human Rights Commission shows that the guidance is not enough to prevent ethnic profiling

once data analysis indicates race disproportionality in the use of powers under Schedule 7

ldquoIn 201011 466 per cent of total examinations were of people of Asian or other

ethnicity as were 652 per cent of over the hour examinations and detentions At

airports 639 per cent of total examinations were of people of Asian or other ethnicity

The experimental analysis of race disproportionality suggests that both black and Asian

or other ethnic groups experienced high race disproportionality in 201011 which was

Malik v the United Kingdom European Court of Human Rights Application no 3296811 Adminissibility

decision 2052013

higher for examinations at airports than for those at all ports Overall race

disproportionality was high for total examinations higher for over the hour

examinations and highest for detentionsrdquo105

This suggests that guidance if not supported by law will not contribute effectively to the

prevention of discrimination Another similar case was already judged by the European Court of

Human Rights and gives us a hint of what can happen in Malik case In Gillan and Quinton v the

UK the Court assessed the alleged violation of Article 8 by the section 44 of the Terrorism Act

2000 This legal provision allowed a uniformed police officer to stop any person within the

geographical area covered by the authorization of a senior officer and physically search the

person and anything he or she carried Firstly the Court had to state that it ldquoconsiders that the use

of the coercive powers conferred by the legislation to require an individual to submit to a

detailed search of his person his clothing and his personal belongings amounts to a clear

interference with the right to respect for private liferdquo106

Then the Court discussed if the interference with the applicants right of private life was in

accordance with the law and observed that if in matters affecting fundamental rights legal

discretion is granted to the police in lsquoterms of unfettered powerrsquo this will be contrary to the rule

of law and the ECHR

Accordingly the law must precisely indicate the lsquoscope of any such discretion conferred

on the competent authorities and the manner of its exercisersquo The Court recognized that the Code

of Practice sets out guidance and dictates how the constable must carry out the search However

in the Courts view ldquothe safeguards provided by domestic law have not been demonstrated to

Hurrel Karen An Experimental Analysis of Examinations and Detentions under Schedule 7 of the Terrorism

Act 2000 Briefing Paper 8 Equality and Human Rights Commission 2013 106

Gillan and Quinton v the United Kingdom European Courtof Human Rights Application No 415805

Judgment 10 January 2010

constitute a real curb on the wide powers afforded to the executive so as to offer the individual

adequate protection against arbitrary interferencerdquo107

The Court added that there is no requirement that the stop and search power be

considered ldquonecessaryrdquo and consequently no requirement of assessment of the proportionality of

the measure The Court concluded by alerting to the fact that none of the thousands searches

under section 44 were related to a terrorist offence what indicates the ldquoclear risk of arbitrariness

in the grant of such a broad discretion to the police officerrdquo108

In Gillan and other v the UK the Court made clear the rule according to which states

are obliged to provide for sufficient safeguards in law against the possible arbitrary use of police

powers and to offer adequate protection to the rights and freedoms guaranteed in the

Convention However the Court in that case did not debate what consist in sufficient safeguards

what was done in 1990 in Fox Campbell and Hartley v The United Kingdom109

In this case the Court discussed if there was a breach of Article 5 sect 1 (art 5-1)

concerning the arrest of the applicants under suspicion of being terrorists In this case the

domestic law also did not require reasonable suspicion but set a lower threshold consisting in

lsquohonest suspicionrsquo According to the House of Lords the honest suspicion was a subjective test

that required officers to honestly believe that there was suspicion

The Court first established that ldquorsquoreasonable suspicionrsquo presupposes the existence of

facts or information which would satisfy an objective observer that the person concerned may

107 Gillan and Quinton v the United Kingdom European Courtof Human Rights Application No 415805

Judgment 10 January 2010 108 Gillan and Quinton v the United Kingdom European Courtof Human Rights Application No 415805

Judgment 10 January 2010 109

Fox Campbell and Hartley v the United Kingdom European Court of Human Rights Applications 1224486

1224586 1238386 Judgment 30 August 1990

have committed the offence What may be regarded as lsquoreasonablersquo will however depend upon

all the circumstancesrdquo110

The Court then assessed if the safeguard afforded by Article 5 sect 1111

has been secured

and concluded that it has not According to the Court the genuine suspicion held by the arresting

officers is not enough to satisfy the requirement of reasonable suspicion In this sense the Courts

stated that the arrests were based on a lsquobona fide suspicionrsquo ndash subjective believe of suspicion

However the information held by the Government (applicantsrsquo previous convictions) cannot

satisfy an objective observer that the applicants could be involved in the new facts and so did not

pass the objective test required

32 National cases

The choice of cases was based in the work both the UK and the US have been doing in

relation to the issues of ethnic profiling and police discretion Although both countries face

problems concerning ethnic profiling there is a difference on how they address them While in

the US regulation chose a conflict model where litigation is common place and redress through

courts is the way of making police forces accountable the UK opted for a consensus model in

which regulation is a result of policy and political debate

Besides as pointed out by Michael Shiner ldquothe disproportionate use of police powers

against black and minority ethnic populations is one of the major fault-lines in police-community

relations in Britain and the USArdquo112

Despite the attempts and the failures I consider the UK and

1224586 1238386 Judgment 30 August 1990 111

ECHR Article 5 5 sect 1 (c) the lawful arrest or detention of a person effected for the purpose of bringing him

before the competent legal authority on reasonable suspicion of having committed an offence or when it is

reasonably considered necessary to prevent his committing an offence or fleeing after having done so 112

Shiner Michael Presentation about Organizational strategies for change and regulation In Roundtable on

Current DebatesResearch Agendas and Strategies to Address EthnicRacial Profiling in the UK and USA (2011)

US good experiences to be observed considering the academic and governmental attention to

these issues Moreover ldquoboth models raise important questions about the ability of organizations

to critically reflect on their own practice to acknowledge their capacity for wrong-doing and to

act on such acknowledgementrdquo 113

what I consider to be the first basic step for the understanding

and planning for any action plan to end ethnic profiling

321 The United States of America

In the United States opposition to ethnic profiling became apparent in the 1980s and

1990s However it was only in the 1990s that the notion of racial and ethnic discriminatory

profiling was crystalized in the context of ldquowar on drugsrdquo114

In our time the US call the worldrsquos attention with the serious ethnic profiling issue the

country is facing in relation to the fight against terrorism and to immigration control What is not

internationally debated however is the racial profiling practiced by US polices within its

territory and against its own citizens In 2001 even President Bush addressed the issue of racial

profiling announcing that ldquoitrsquos wrong and we will end it in Americardquo115

As we know the US Supreme Court has a central role in establishing legal standards Its

biggest impact on race related issue goes back to 1954 with Brown vs Board of Education116

when the Court upheld the ldquoseparate but equalrdquo doctrine stating that it was inherently unequal

and that racial segregation had a detrimental effect on racial minority children

Pg1 114

Ethnic Profiling in the Moscow Metro Open Society Justice Initiative (2006) 115

George W Bush President United States of America Address of the President to the Joint Session of Congress

(Feb 27 2001) quoting US Deprsquot of Justice Fact Sheet Racial Profiling 1 (2003) Available at

wwwusdojgovopapr2003Juneracial_profiling_fact_sheetpdf 116

Brown vs Board of Education 347 US 483 (1954)

In 1976 a decision by the US Supreme Court in Washington v Davis117

assessed the

recruitment procedures of the District of Columbia Police Department which measured verbal

ability and reading comprehension As a result more black applicants failed the test The

Supreme Court held that discriminatory impact if not intended did not configure violation of the

Equal Protection Clause

In 1996 a landmark decision118

determined that the New Jersey State Police was

engaging in unlawfully racial profiling in violation to the Fourth Amendment119

According to

the arguments of the defendants in the case they were arrested illegally once the police act based

on discriminatory enforcement of traffic law A statistical study revealed that in June of 1993

374 of all drivers stopped involved racial minorities while in observed randomly-selected

times only 135 were African Americans

Although the Court played an important role in some situations scholars argue they are

also responsible for the slowness in which things are changing Kevin Johnson affirmed that

ldquosince at least 1970 the Court has consistently refused to interfere with aggressive police

practices in fighting crime and has steadily expanded the discretion afforded police officersrdquo120

what results in a permissible racial profiling practice

Also in 1996 in Whren v United States the Supreme Court assessed the reasons that led

to a traffic stop They looked into the possibility of search and seizure without probable cause

under the defendantrsquos argument that the stop of two black young men was done based on racial

profiling The Court ruled that the Constitution prohibits selective enforcement of the law based

Washington v Davis 426 US 229 235ndash36 248 (1976) 118

State v Soto 734 A2d 350 (1996) 119

US Constitution Fourth Amendment declares that ldquoThe right of the people to be secure in their persons houses

papers and effects against unreasonable searches and seizures shall not be violated rdquo 120

Johnson Kennedy How Racial Profiling in America Became the Law of the Land United States v Brignoni-

Ponce and Whren v United States and the Need for Truly Rebellious Lawyering The Georgetown Law Journal

Vol 981005 2010 Pg 1048

on considerations such as race but this conclusion was provided without a remedy as Kevin

Johnson observes He argues that the decision did not send the right message and ldquoaffirmatively

contributed to the predominance of racial profiling in law enforcement in modern Americardquo121

when it recognized that intentionally discriminatory application of laws would be violation of the

Equal Protection Clause122

yet the case was not judged under a race-based law enforcement

conduct The Court instead held that as long there is a reasonable cause that a traffic violation

occurred the police may stop a vehicle

The United States Constitution requires reasonableness in the exhaustively discussed

Fourth Amendment which protects people against ldquounreasonable searches and seizuresrdquo

Accordingly the US Supreme Court jurisprudence held that for a police stop to comply with the

Fourth Amendment rule it has to be based on reasonable suspicion of a criminal activity

considering that reasonable suspicion is an objective standard meaning that subjective reasons

are irrelevant In their words the police can stop a suspect when the officer is ldquoable to articulate

something more than an inchoate and unparticularized suspicion or hunchrdquo this would indicate

the existence of objective reasons

The lsquoarticulable somethingrsquo are specific facts that the police must be able to describe

together with ldquorational inferences from those facts reasonably warrant [the] intrusion [on a

citizenrsquos liberty interest]rdquo 123

independently of the irrelevant subjective thought the police officer

might have

Thought the standards were settled a long ago the US still faces problems with the

requirement of the lsquoarticulable somethingrsquo A report of the special rapporteurs on contemporary

Ponce and Whren v United States and the Need for Truly Rebellious Lawyering (2010) 122

Fourteenth Amendmentrsquos Equal Protection Clause declares that ldquo[n]o State shall deny to any person within its

jurisdiction the equal protection of the lawsrdquo 123

Terry v Ohio (1968) 392 US 1 27

forms of racism racial discrimination xenophobia and related intolerance Doudou Diegravene

recommended that the US government ldquoclarify to law enforcement officials the obligation of

equal treatment and in particular the prohibition of racial profilingrdquo124

He also pointed that ldquoapproximately 32 million people in the United States report having

been victims of this practicerdquo and criticized the Guidance Regarding the Use of Race by Federal

Law Enforcement Agencies issued by the Department of Justice because of how inaccurate

profiling was regulated He observed that it ldquodoes not cover profiling based on religion religious

appearance or national origin does not apply to local law enforcement agencies does not include

any enforcement mechanism does not require data collection does not specify any punishment

for federal officers who disregard it contains a blanket exception for cases of lsquothreat to national

security and other catastrophic eventsrsquo and lsquoin enforcing laws and protecting the integrity of the

Nationsrsquo bordersrsquordquo 125

Recently the New York City Department was sued in a case about the ldquotension between

liberty and public safety in the use of a proactive policing tool called lsquostop and friskrsquordquo126

According to data between January 2004 and June 2012the police of NY made 44 million

stops Over 80 of these stops were of black and Hispanics In the decision the judge looked

into various elements among them the existence of a discriminatory pattern whether the City had

notice of the allegation of ethnic profiling and what was done in terms of monitoring the

situation and training

Report on contemporary forms of racism racial discrimination xenophobia and related intolerance by the

Special Rapporteur Doudou Diegravene Mission to the United States of America (2009) 125

Floyd et al vs City of New York et al United State District Court Southern District of New York Opinion and

The information of the 44 million stops were produced based on the NYPD database

which is fed by forms filled out by police officers after each stops Some methodological errors

influenced the quality of the information yet those data informed that at least 200000 stops from

were made without reasonable suspicion127

Among the findings the judge extracted from the expert testimony the following

observations ldquo(1) The NYPD carries out more stops where there are more black and Hispanic

residents even when other relevant variables are held constant The racial composition of a

precinct or census tract predicts the stop rate above and beyond the crime rate (2) Blacks and

Hispanics are more likely than whites to be stopped within precincts and census tracts even after

controlling for other relevant variablesrdquo128

The plaintiffs in this case argued violation of the Fourth Amendment Clause and of the

Equal Protection Clause of the Fourteenth Amendment both of the US Constitutions The first

protects people against unreasonable stops searches and seizures This means according to a US

Supreme Court decision that the police can only ldquostop and briefly detain a person for

investigative purposes if the officer has a reasonable suspicion supported by articulable facts that

criminal activity lsquomay be afootrsquo even if the officer lacks probable causerdquo129

The Fourteenth Amendment is related to peoplersquos equality before the law and protects all

individuals against intentional discrimination based on race As mentioned before ethnic

profiling is very hard to be demonstrated and so the discrimination is hard to be proved however

Executive Summanry Document 373 Floyd et al vs City of New York et al United State District Court

Southern District of New York Opinion and Order 08 Civ 1034 (SAS) 128

Order 08 Civ 1034 (SAS) 129

United States v Swindle 407 F3d 562 566 (2d Cir 2005) (quoting United States v Sokolow 490 US 1 7

(1989)) (some quotation marks omitted) in Floyd et al vs City of New York et al United State District Court

Southern District of New York Opinion and Order 08 Civ 1034 (SAS)

the circumstantial evidence of the intent is considered to be enough this means that the plaintiffs

must prove that ldquoa discriminatory purpose has been a motivating factorrdquo130

The conclusion after the examination of all the information above was that the ldquoNYPD

has an unwritten policy of targeting ldquothe right peoplerdquo for stops In practice the policy

encourages the targeting of young black and Hispanic men based on their prevalence in local

crime complaints This is a form of racial profilingrdquo131

Therefore the judge ruled that the NYPD

violated both the Fourth Amendment Clause and the Equal Protection Clause

Another important issue raised in the decision concerns another aspect of the Fourth

Amendment which imposes ldquoresponsibility that constrains state actors requiring them to

discharge their powers of investigation in a manner that keeps with the public trustrdquo132

Moving

from the lsquorightsrsquo language the decision concluded that there was an inadequate monitoring and

supervision of the unconstitutional stops The supervisors would review officersrsquo productivity

but no one looked into the constitutionality and quality of the officersrsquo conduct The proper

recording of the stops emerged as a problem that was never detected by the supervisors

The poor training of officers also appeared as a problem that needs to be addressed The

officersrsquo testimonies evidenced that there is a distorted comprehension of what ldquofurtive

movementsrdquo as a reasonable suspicion would be They used examples fully based on stereotypes

to describe what would configure a ldquofurtive movementrdquo situation As previously discussed in this

thesis the stereotyping is one of the causes and consequences of racial profiling

Accord Personnel Admrsquor of Mass v Feeney 442 US 256 277 (1979) (ldquoDiscriminatory intent is simply not

amenable to calibration It either is a factor that has influenced the [governmental action] or it is notrdquo) in Floyd et al

vs City of New York et al United State District Court Southern District of New York Opinion and Order 08 Civ

1034 (SAS) 131

Order 08 Civ 1034 (SAS) 132 Citron Eric F Rights and Responsibility in Fourth Amendment Jurisprudence The Problem with Pretext Yale

Law Journal 116 YALE LJ 1072 (2007)

322 United Kingdom

As we saw in the report about Schedule 7133

the limits to the discretionary police power

must be set in law in order to effectively provide for safeguards against arbitrary use of police

powers

Since the 1970s the relations between the police and black community in the UK were

deteriorating134

One of the main reasons for this deterioration was the lack of an adequate legal

framework and the lack of an accountability system that would address bad and miscarriage

conducts Consequently this poor relation resulted in less confidence in the police what increased

gradually the level of mistrust

In this context and under the legacy of colonialism135

the Brixton riots happened in 1981

During two days in April 1981 many people ndash police and public ndash were injured vehicles were

burned and buildings were damaged in one of the most remarkable crowd reaction to the police

action At that time Britain faced a national recession and in Brixton there was a serious tension

as the economic situation in the neighborhood was deteriorating with high unemployment rate

poor housing high crimes rate and suspicion of racial-motivated actions against black people

The lack of regulation on police powers is also essential to understand the tension

existing between black communities and the police In a time when there was no precise and

ReinerR The politics of the Police In Delsol Rebekah Institutional Racism the Police and Stop and Search A

Comparative Study of Stop and Search in the UK and USA PHD Thesis submitted to the Department of Sociology

of University of Warwick 2006 135 The Durban Declaration recognized the role of colonialism in the development of racial discriminatory culture It

states ldquocolonialism has led to racism racial discrimination xenophobia and related intolerance and that Africans

and people of African descent and people of Asian descent and indigenous peoples were victims of colonialism and

continue to be victims of its consequences We acknowledge the suffering caused by colonialism and affirm that

wherever and whenever it occurred it must be condemned and its reoccurrence prevented We further regret that the

effects and persistence of these structures and practices have been among the factors contributing to lasting social

and economic inequalities in many parts of the world todayrdquo (World Conference against Racism Racial

Discrimination Xenophobia and Related Intolerance September 2001 note 14)

adequate national legislation to regulate stop and search the police carried out the so called

Operation Swamp 81 that consisted in a mass stop and search of primarily black people with the

intention to cut street crime in Brixton136 more than one hundreds police officers were in the

streets patrolling a specific area with the instruction to stop and question people with lsquosuspicious

lookrsquo137

At that time PACE (Police and Criminal Evidence Act 1984) did not exist

After the terrible consequences of the riots - over 300 people were injured 83 premises

and 23 vehicles were damaged138 - an inquiry was installed to investigate what some would call

the ldquotemporary collapse of law and orderrdquo in Brixton139

An inquiry was ordered by the then

Home Secretary and resulted in the Scarman Report which looked into the confrontation between

the Metropolitan Police and protesters whom happen to be mostly black youths and brought into

light the ldquoracial disadvantage that is a fact of British life140

Although the Scarman Report rejected the idea of organizational and institutional racism

it went far in evidencing the disproportionate use of police powers ndash stop and search ndash against

black people The report exposed the existence of discrimination but without using heavy terms

such as racist actions According to the report public bodies and individuals might unwittingly

have discriminated against black people It was only 18 years later that Britain would face

another inquiry that would bring this issue again into the public debate

The above mentioned denial may have impaired the efforts to address wha we now call

ethnic profiling however the Scarman Report had good impacts and had an important role to

Bridges Lee Police-Initiated stop practices in the United Kingdom ndash Where are we now Paper for Roundtable

on Current Debates Research Agenda and Strategies to Address Racial Disparities in Police-Initiated Stops in the

UK and USA John Jay College of Criminal Justice New York August 2011 137

Shiner Michael National Implementation of the recording of police stops (2006) Pg 7 138

1981 Brixton riots report blames racial tension

See at BBC News httpnewsbbccoukonthisdayhidatesstoriesnovember25newsid_25460002546233stm 139

Facing Ugly Facts The Guardian February 1999

See at httpwwwtheguardiancomuk1999feb17lawrenceukcrime1 140

See at BBC News httpnewsbbccoukonthisdayhidatesstoriesnovember25newsid_25460002546233stm

raise awareness to the existing racial tension The report concluded that complex political

social and economic factors created a disposition towards violent protest141

Lord Scarman

pointed out that it was necessary to recruit more ethnic minorities into the police force and

changes in training and law enforcement and the problems of racial disadvantage were

highlighted

What the Scarman Report did not do was to call for a curtailment in the policersquos legal

powers in respect to stop and search142

However in the same year the Royal Commission of

Criminal Procedure established to look into early miscarriages of justices in the mid-1970s

issued a report that formed the basis for the codification of police powers the PACE (Police and

Criminal Evidence Act 1984)143

Michael Zander said that the ldquoAct was the result of the report in

1981 of the Royal Commission on Criminal Procedure chaired by Sir Cyril Philipsrdquo144

According to professor Zander the PACE was intended to restore ldquothe legitimacy of

urban policing which had suffered a critical loss in public confidence as a result of both

miscarriage of justice cases and the recent history of violent confrontations between the police

and inner city communitiesrdquo145

As described in the UK government website PACE ldquosets out to

strike the right balance between the powers of the police and the rights and freedoms of the

publicrdquo146

The Scarman report BBC News See at httpnewsbbccouk2hiprogrammesbbc_parliament3631579stm 142

UK and USA (2011) 143

Consultation on revised PACE codes of practice 2013

Available at httpswwwgovukgovernmentconsultationsconsultation-on-revised-pace-codes-of-practice-2013

144 Zander Michael PACE (The Police and Criminal Evidence Act 1984) Past Present and Future LSE Law

Society and Economy Working Papers 12012 London School of Economics and Political Science Law

Department 2012 145

Zander Michael PACE (The Police and Criminal Evidence Act 1984) Past Present and Future (2012)Pg2 146

PACE ndash Code of Practices See at httpswwwgovukpolice-and-criminal-evidence-act-1984-pace-codes-of-

practice

In relation to the theme discussed in this thesis PACE biggest contribution was the

imposition of formal ldquoadministrativebureaucratic controlsrdquo147 over the exercise of police powers

The Act established a general and broad power to stop and search however in conjunction with

it the Act ldquoushered in a period of unprecedented transparency and scrutiny of the police through

empirical research and the collection of routine data on a whole range of police operations and

practices including stop and searchrdquo148

establishing requirements such as the maintenance of

administrative records relating to a wide range of police activities All this gave a whole new

dynamic to police conduct

In the UK under the PACE (Police and Criminal Evidence Act 1984) reasonable

suspicion is required as a ground for stop and search in most of the cases PACE provides that

powers to stop and search lsquorequire reasonable grounds for suspicionrsquo and lsquomust be used fairly

responsibly with respect for people being searched and without unlawful discriminationrsquo The

PACE defines better what is understood as reasonable grounds and states that it depends on some

objective circumstances such as lsquosuspicion based on facts information andor intelligence which

are relevant to the likelihood of finding an article of a certain kind or in the case of searches

under section 43 of the Terrorism Act 2000 to the likelihood that the person is a terroristrsquo

moreover lsquoreasonable suspicion can never be supported on the basis of personal factorsrsquo149

PACE (Police and Criminal Evidence Act 1984) Codes of practice ndash Code A Exercise by police officers of

statutory powers of stop and search ldquoPrinciples governing stop and search

11 Powers to stop and search must be used fairly responsibly with respect for people being searched and without

unlawful discrimination (hellip) When police forces are carrying out their functions they also have a duty to have

regard to the need to eliminate unlawful discrimination harassment and victimisation and to take steps to foster

good relations

14 The primary purpose of stop and search powers is to enable officers to allay or confirm suspicions about

individuals without exercising their power of arrest Officers may be required to justify the use or authorisation of

such powers in relation both to individual searches and the overall pattern of their activity in this regard to their

supervisory officers or in court Any misuse of the powers is likely to be harmful to policing and lead to mistrust of

the police Officers must also be able to explain their actions to the member of the public searched The misuse of

these powers can lead to disciplinary action

The PACE Codes of Practice also provide the basic rule to limit police discretionary

power according to which ldquothere is no power to stop or detain a person in order to find grounds

for a searchrdquo They establish that reasonable suspicion ldquocannot be based on generalizations or

stereotypical images of certain groups or categories of people as more likely to be involved in

criminal activityrdquo but may in some cases ldquoexist without specific information or intelligence and

on the basis of the behavior of a personrdquo150

21 This code applies to powers of stop and search as follows

(a) powers which require reasonable grounds for suspicion before they may be exercised that articles unlawfully

obtained or possessed are being carried or under Section 43 of the Terrorism Act 2000 that a person is a terrorist

(b) authorised under section 60 of the Criminal Justice and Public Order Act 1994 based upon a reasonable belief

that incidents involving serious violence may take place or that people are carrying dangerous instruments or

offensive weapons within any locality in the police area or that it is expedient to use the powers to find such

instruments or weapons that have been used in incidents of serious violence

Searches requiring reasonable grounds for suspicionrdquo 150 PACE (Police and Criminal Evidence Act 1984) Codes of practice ndash Code A Exercise by police officers of

22 Reasonable grounds for suspicion depend on the circumstances in each case There must be an objective basis

for that suspicion based on facts information andor intelligence which are relevant to the likelihood of finding an

article of a certain kind or in the case of searches under section 43 of the Terrorism Act 2000 to the likelihood that

the person is a terrorist Reasonable suspicion can never be supported on the basis of personal factors It must rely

on intelligence or information about or some specific behaviour by the person concerned For example unless the

police have a description of a suspect a personrsquos physical appearance (including any of the lsquoprotected

characteristicsrsquo set out in the Equality Act 2010 (see paragraph 11) or the fact that the person is known to have a

previous conviction cannot be used alone or in combination with each other or in combination with any other

factor as the reason for searching that person Reasonable suspicion cannot be based on generalisations or

stereotypical images of certain groups or categories of people as more likely to be involved in criminal activity

23 Reasonable suspicion may also exist without specific information or intelligence and on the basis of the

behaviour of a person For example if an officer encounters someone on the street at night who is obviously trying

to hide something the officer may (depending on the other surrounding circumstances) base such suspicion on the

fact that this kind of behaviour is often linked to stolen or prohibited articles being carried Similarly for the

purposes of section 43 of the Terrorism Act 2000 suspicion that a person is a terrorist may arise from the personrsquos

behaviour at or near a location which has been identified as a potential target for terrorists

24 However reasonable suspicion should normally be linked to accurate and current intelligence or information

such as information describing an article being carried a suspected offender or a person who has been seen carrying

a type of article known to have been stolen recently from premises in the area Searches based on accurate and

current intelligence or information are more likely to be effective Targeting searches in a particular area at specified

crime problems increases their effectiveness and minimises inconvenience to law- biding members of the public It

also helps in justifying the use of searches both to those who are searched and to the public This does not however

prevent stop and search powers being exercised in other locations where such powers may be exercised and

reasonable suspicion exists

211 There is no power to stop or detain a person in order to find grounds for a searchrdquo

Just like the discussion on Malik case in the UK there are other instruments that

dispense the need of the criterion of reasonable suspicion and allow police to act with a much

wider discretion

That is the case of section 44 of the Terrorism Act 2000 and Section 60 of the Criminal

Justice and Public Order Act 1994 Both cases were judicially challenged As seen section 44 of

the Terrorism Act was even brought before the European Court of Human Rights which found a

violation of Article 8 Section 60 of Act 1994 was until now only challenged domestically

Section 60 of the Act 1994 is called lsquoPowers to stop and search in anticipation of

violencersquo It states that

ldquoif a police officer of or above the rank of inspector reasonably believes that incidents

involving serious violence may take place in any locality in his police area and that it is

expedient to give an authorisation under this section to prevent their occurrence or that

persons are carrying dangerous instruments or offensive weapons in any locality in his

police area without good reason he may give an authorisation that the powers conferred

by this section are to be exercisable at any place within that locality for a specified

period not exceeding 24 hoursrdquo151

The claimant in R v The Commissioner of the Metropolitan Police sought a declaration

that the Section 60 of Act 1994 was incompatible with the European Convention on Human

Rights Article 5 and Article 8 The High Court concluded that the arbitrary nature of the power

should be assessed in the context of Article 8 Making a big effort to point out all the differences

between section 44 of the Terrorism Act 2000 and Section 60 of the Criminal Justice and Public

Order Act 1994 the Court decided in the same way as it did in the Gillan case but in this

occasion they argued that ldquothe power conferred by s60 to give authorization was not unfetteredrdquo

Criminal Justice and Public Order Act 1994

because ldquoit is circumscribed by the provisions of s60 and Code A and subject to the control of

the courtsrdquo152

Moreover the High Court refused to look into the potential risk of discriminatory use of

the powers at stake because this issue did not arise in this case Accordingly the Court stated that

the alleged potential discrimination gave rise to a many material and debate in the instant case

ldquoit was suggested that statistics demonstrated that searches were targeted explicitly on the basis

of racial characteristics (hellip)But it is essential to appreciate that that issue does not arise in the

instant caserdquo153

In my view when the Court makes such statement it excluded the state responsibility to

provide in advance for mechanisms legal or not capable of preventing and disabling the

discriminatory use of police powers Taking this case in comparison with the Floyd case in the

US while the UK High Court did not assess the potential discriminatory impact of section 60 in

Floyd case the US District Court ruled beyond the discriminatory impact of the unconstitutional

use of police power and called for the state responsibility to monitor and overview police

officersrsquo conduct

152 The Queen on the Application of Ann Juliette Roberts v The Commissioner of the Metropolitan Police v The

Secretary of State for the Home Department Case No CO126602010 High Court of Justice Queens Bench

Division Administrative Court 17 July 2012 [2012] EWHC 1977 (Admin) 2012 WL 2500818 153 The Queen on the Application of Ann Juliette Roberts v The Commissioner of the Metropolitan Police v The

Division Administrative Court 17 July 2012 [2012] EWHC 1977 (Admin) 2012 WL 2500818

Chapter 4 - Monitoring and recording police actions

In chapter 2 focus was given to legal standards and provisions concerning the prohibition

of discrimination As observed many instruments address the issue of discrimination but none of

them expressly refer to ethnic profiling though it is a widespread problem In the same chapter

2 some relevant recommendations proposed by international bodies concerning discrimination

in the context of law enforcement were also listed Those recommendations are particularly

relevant in this chapter that aims to debate the need to implement mechanism other than the legal

framework to contribute with the elimination of ethnic profiling and any type of discriminatory

policing

The mentioned recommendations included (i) the proposal of indicators of racial

profiling that would allow learning the extent of racial and ethnic discrimination by observing

among other thing the number of persons affected by discriminatory conducts and information

about police behavior (ii) the enactment of adequate law governing the issue (iii) the

establishment of training and educational programmes in line with the respect for human rights

(iv) fostering dialogue between police and minorities groups (v) effective accountability system

providing for effective investigatory mechanisms to clarify discrimination incidents and for

effective remedies to victims (vi) the use of guidelines and codes of conduct to regulate police

activities and behavior (vii) ethnic monitoring of police operations and outcomes and (viii)

researches specifically on racial profiling including data broken down by ethnicity race religion

and national origin

From all this recommendation I believe monitoring police activities and extracting every

possible information about their operations is the best way to improve the fight against ethnic

profiling ECRIacutes assumptions coincides with the view presented in this study according to

which ethnic data collection is fundamental for the realization of any policy that aims to combat

ethnic discrimination154

The conclusion is that data is essential to provide baseline information

over which policy makers scholars judges the police themselves can draw the lines of their

work Alongside with the importance of these data to enable work to be started the data is also

necessary to assess the effectiveness and impacts of policies In the same way many of the

reported cases also show the importance of having data and information on police activities

In the previously mentioned Floyd case that challenged the NY Police Department

statistical data had a core role in Floyd case The judge would not be able to understand the

extension of the NYPD policy of racial profiling it there were no reliable data available All the

studies previously produced plus the information from the police database155

were able to present

the full picture of the discriminatory policy applied what led to the judge concluding that the

NYPD adopted a policy of targeting racially defined groups based on the local crime suspect

Professor Fagan the expert who analyzed NYPD database looked into the data to assess

both the argument on 4th

and 14th

Amend He was able to show that a lot of stops were made

without reasonable suspicion checks of boxes in the form were not true and that police were

making it up discrimination in relation to blacks and Latinos dissociation of crime rate and

stops of these minorities mistreatment of people stopped (use of force)

In addition the recording of stops and the proper recording manner were discussed not

only in light of the content they produced but also from the state obligation of producing fair and

good quality information

Simon Patrick ldquoEthnicrdquo Statistics and data protection in the Council of Europe Countries Institut National

dEtudes Deacutemographiques Council of Europe Strasburg 2007 155

In NY the police have to fill out a form - US250 form with name age race data of birth where and time of stop

plus check of reasons why they stopped the person

The same importance to data was given in Gillan and Quinton v the United Kingdom in

which the European Court could assess the extensive use of the powers of stop and search under

section 44 of the Terrorism Act The Ministry of Justice provided for information showing the

increase of the use of such power and recorded a total of 33177 searches in 20045 44545 in

20056 37000 in 20067 and 117278 in 20078 Besides data could reveal the ldquopoor and

unnecessary use of section 44 abounded there being evidence of cases where the person stopped

was so obviously far from any known terrorism profile that realistically there was not the

slightest possibility of himher being a terrorist and no other feature to justify the stoprdquo156

Even President Clinton when speaking in a conference in 1999 made very clear what

should be done to address racial profiling

ldquoFederal agencies should collect more data at all levels of law enforcement to better

define the scope of the problem The systematic collection of statistics and information

regarding Federal law enforcement activities can increase the fairness of our law

enforcement practices Tracking the race ethnicity and gender of those who are

stopped or searched by law enforcement will help to determine where problems exist

and guide the development of solutionsrdquo157

In 2000 the US Department of Justice funded a study about promising practices and

lessons learned about racial profiling data collection The Guide on Racial Profiling Data

Collection Systems compiles information of some experiences of different states and highlights

the importance of data collection not only to serve a monitoring purpose but also as a strong

message given to the community The Guide points out how such system could influence not

only the community view but many other procedures ndash like training education ndash within the

police entity By collecting statistics information it is possible to move to a more rational

dialogue that will be based in credible information that will support criticism and also ldquoascertain

156 Gillan and Quinton v the United Kingdom European Court of Human Rights Application No 415805

Memorandum for the Secretary of the Treasury the Attorney General the Secretary of the Interior June 1999

Available at httpwwwaeleorgfedprofhtml

the scope and magnitude of the problemrdquo158

Interestingly the Guide does not mention the issue

of data protection or privacy

I believe it is not wrong to say that in terms of combating ethnic profiling it is

indispensable to collect ethnic data of those affected by police actions in order to know well the

extension and the full scenario of police actions That was the approach taken in the UK after

Macpherson report was launched The experience which appears to have been successful is

debated in the following section and provides an interesting overview on how police misconduct

was addressed

41 The Stephen Lawrence Inquiry - MacPherson Report

In April 1993 a black youth called Stephen Lawrence was stabbed to death by five white

young men The case became well known because of the ineffective investigation into

Lawrencersquos death and the racially motivated crime It was only in 1997 that an inquiry was

established to examine ldquomatters arising from the deathrdquo of Stephen Lawrence and to ldquoidentify the

lessons to be learned for the investigation and prosecution of racially motivated-crimesrdquo159

1999 when the report160

was released Britain was shamed with the declaration of the existence

of institutional racism161

The report formulated after the inquiry is known as Macpherson Report because the

inquiry was conducted by Sir William Macpherson The report had a core role in the

development of the British police The declaration of institutional racism installed a delicate but

Ramirez Deborah Jack McDevitt and Amy Farrell A Resource Guide on Racial Profiling Data Collection

Systems Promising Practices and Lessons Learned US Department of Justice Northeastern University 2000 159

Storry Kirsten The Implications of the Macpherson Report Into the Death of Stephen Lawrence Kirsten Storry

12 Current Issues Crim Just 106 2000-2001 160

The Inquiry into the matters arising from the death pf Stephen Lawrence The Stephen Lawrence Inquiry

Conducted by Sir William Macpherson of Cluny 15 February 1999 161

Neal Sarah (2003) The Scarman Report the Macpherson Report and the Media how newspapers respond to

race-centred social policy interventions Journal of Social Policy 32(1) pp 55ndash74

promising debate about racism inside the police and its effects on policing In addition to the

racism issue the inquiry also identified professional incompetence disclosed by the ldquolack of

direction and documentation in the initial response the lack of information and sympathy

provided by way of family liaison the inadequate supervision and perpetration of errors and

assumptions by the superior officers the poor planning and carrying out of surveillancerdquo among

other factors162

Whilst the inquiry focused on the procedural and management problems and

errors academic studies indicated that the incompetence could be better explained in terms of

ldquointeraction between the social and political context of police work and the institutionalized

perceptions values strategies and schemasrdquo163

The report focused on different aspects of Stephen Lawrenceacutes case and presented several

recommendations After analyzing the failures and identifying some of the problems involving

the event the report presented a list of recommendations addressing topics such as confidence in

policing amongst minority ethnic communities what could be done by increasing prevention

measures investigation and prosecution of racist incidents guidelines and policy directives

regulating stop and search procedures and their outcomes promoting cultural and ethnic mix

between the communities and authorities reporting and recording of racist incidents and crimes

training officers in order to raise racism awareness and to transmit the value of cultural diversity

police accountability training and changing the culture in the police force recruitment rules

among other things

(2000-2001) 163

(2000-2001)

The report amounted in the ldquomost extensive programme of reform in the history of the

relationship between the police and ethnic minority communitiesrdquo164

in Britain Concerning

ethnic profiling and the need to improve police credibility and have an effective accountability

system the most relevant recommendations are as follows

ldquo60 That the powers of the police under current legislation are required for the

prevention and detection of crime and should remain unchanged

61 That the Home Secretary in consultation with police services should ensure that a

record is made by police officers of all stops and stops and searches made under

any legislative provision (not just the Police and Criminal Evidence Act) Non-

statutory or so called voluntary stops must also be recorded The record to include the

reason for the stop the outcome and the self-defined ethnic identity of the person

stopped A copy of the record shall be given to the person stopped

62 That these records should be monitored and analyzed by police services and police

authorities and reviewed by HMIC on inspections The information and analysis

should be published

63 That police authorities be given the duty to undertake publicity campaigns to ensure

that the public is aware of stop and search provisions and the right to receive a record

in all circumstancesrdquo165

The UK government accepted all recommendations and it is important to state that

according to a study of the Equality and Human Rights Commission looking at the 10 years after

Stephen Lawrencersquos inquiry there was some progress found in the use of stop and search against

ethnic minorities However the disproportionate impact of stop and search on black people is

still revealed by data analysis166

Specifically Recommendation 61 and 61 raised resistance from the police forces and

some challenges to be met before the recording could be successfully applied Professor Shiner

argues that one strong criticism made by police regarding the recommendations is their feeling of

Bowling B and Phillips C (2002) Racism Crime and Justice quoted in Shiner Michael National

Implementation of the recording of police stops (2006) 165

Lawrence Key recommendations BBC News at httpnewsbbccouk2hiuk_news285537stm 166

Bennetto Jason Police and racism what has been achieved 10 years after the Stephen Lawrence Inquiry report

Equality and Human Rights Commission 2009

little ownership of the requirements167

The implementation of the recording of police stops

happened in a period of five years168

This gave rise to a duality regarding the new requirement

police forces were required to implement a new internal instrument but at the same time the

instrument was not fully internal as it was introduced by external forces As Shiner tells us

ldquothere was a clear sense in which the new recording requirement was seen as being part of an

externally imposed agendardquo169

Two groups oversaw the extension of the recording the Stop and Search Sub Group of

the Lawrence Steering Group (LSG) and the Home Office Stop and Search Action Team

(SSAT) According to the LSG the aim of recording was ldquoto promote trust and confidence in the

police by providing transparency and accountability on the spot at a strategic level for police

initiated non-statutory encountersrdquo170

This aim would be achieved by (i) providing those stopped with documented and

credible reasons for being stopped (ii) providing data from which monitoring can be carried out

by the police police authorities and partners for accountability purposes (iii) providing means to

supervisors to enable them to scrutinize officers activities (iv) developing a true statistical

picture of all police encounters (v) informing understanding about the nature and extent of stops

(vi) raising officersrsquo awareness of the impact of their actions through documenting the reasons

and outcomes of their action (vii) comparing ethnically the area of police activity against other

statistical data

Shiner Michael Presentation about Organizational strategies for change and regulation In Roundtable Current

DebatesResearch Agendas and Strategies to Address EthnicRacial Profiling in the UK and USA (2011) 168

Professor Shiner informed that Staffordshire Police was the first among the cases he studied to introduced the

new recording requirement It started on January 1 2004 169

Shiner Michael National Implementation of the recording of police stops (2006) 170

Shiner Michael National Implementation of the recording of police stops (2006) Pg 9

Michael Shiner who wrote an extensive report on the implementation of the recording of

police stops based on case studies and surveys of police forces observed that the best received

guidance were the one with a tangible and practical characteristic He identified the value of

practical support and a clear demand for a national template

Shiner examined the impact officers expected recording stops to have Although many

were skeptical about the extent of the achievements the survey showed some good expectations

The survey demonstrated that there was a low expectation of impact of recording stops on the

fight against crime and there was a negative expected impact on officerrsquos confidence in stopping

people and on officerrsquos work-load On the other hand there was a high expectation in relation to

providing credible reasons to those stopped (what would eventually increase police credibility)

and to guaranteeing fairness in street intervention by the police and accountability of the police

Although there was some resistance in relation to the recordings the fact is that the survey

revealed that they believe on the recording as an instrument to achieve the proposed aims

From the community point of view the records were felt as invasive and might bring

forth a negative community reaction The information collected made some people feel

uncomfortable and express reservations about providing information for intelligence purpose

(names addresses) The community argued that stop records should be limited to management

purposes

This last point raises a central debate about data collection and especially personal data

collection It is important to bear in mind that although the demand for more data might suggest

full control and monitoring of law enforcement activities the idea of full surveillance has to be

carefully managed considering the issues involving the collection processing use and storage of

data The importance of data is undeniable but some considerations concerning data protection

must be made

42 Ethnic data protection

This last section does not intent to be an exhaustive analysis of issues concerning ethnic

data protection I will briefly explore some issues related to data protection that cannot be ignore

in designing and planning a fair just and effective police monitoring system

According to Article 17 of the ICCPR ldquono one shall be subjected to arbitrarily or

unlawful interference with his privacyrdquo The Convention for the Protection of Individuals with

regard to Automatic Processing of Personal Data of the Council of Europe states that ldquopersonal

data revealing racial origin political opinions or religious or other beliefs as well as personal

data concerning health or sexual life may not be processed automatically unless domestic law

provides appropriate safeguards The same shall apply to personal data relating to criminal

convictionsrdquo171

Countries present different standards and concerns regarding data protection In some

places the need and the benefits of ethnic data collection are strongly questioned and as a

consequence a lot of resistance is showed whenever there is an attempt to regulate the issue

That is the case in Europe where many states do not even provide for data disaggregated

according to race or ethnicity what impedes to properly monitor the effectiveness of

antidiscrimination policies172

Article 6 ndash Special Categories of data of the Convention for the Protection of Individuals with regard to

Automatic Processing of Personal Data of the Council of Europe 172

Hermanin Costanza and Eefje de Kroon The Race Equality Directive a Shadow Report Lessons learnt from

the implementation in nine EU member states Open Society European Policy Institute July 2013 and Simon

Patrick ldquoEthnicrdquo Statistics and data protection in the Council of Europe Countries ECRI (2007)

The OSCE Recommendations on Policing in Multi-Ethnic Societies proposes the

monitoring of the outcomes of police operations and it expressly express concern with data

protection stating that the monitoring should be done with due regard to confidentiality and the

data anonymized and aggregated in statistical form the rights of individuals173

Moreover the EU Directive on the protection of individuals with regard to the

processing of personal data also call states to observe some norms regarding personal data is

ldquo(a) processed fairly and lawfully

(b) collected for specified explicit and legitimate purposes and not further

processed in a way incompatible with those purposes Further processing of data for

historical statistical or scientific purposes shall not be considered as incompatible

provided that Member States provide appropriate safeguards

(c) adequate relevant and not excessive in relation to the purposes for which they

are collected andor further processed

(d) accurate and where necessary kept up to date every reasonable step must be

taken to ensure that data which are inaccurate or incomplete having regard to the

purposes for which they were collected or for which they are further processed are

erased or rectified

(e) kept in a form which permits identification of data subjects for no longer than is

necessary for the purposes for which the data were collected or for which they are

further processed Member States shall lay down appropriate safeguards for personal

data stored for longer periods for historical statistical or scientific userdquo174

With this in mind I say that there are three main questions that pose obstacles to the

realization of data collection and management for the purpose of monitoring privacy rights and

principles of data protection guarantee of non-discrimination once the data is available legal

and administrative safeguards must be observed the need for competent and good mechanism

and instruments to neutrally collect data

Through these three questions and observing the instruments mentioned above it is

possible to identify a clear cut concerning the protection of ethnic and minority groups against

individuals with regard to the processing of personal data and on the free movement of such data

the abuse and misuse of the data Accordingly as history shows ethnicity very often is a tool for

stigmatization An ECRIrsquos study report reveals that members States associate ldquoethnic datardquo with

some risks such as reinforcement of racism and discrimination make visible division instead of

achieving cohesion and data used for persecution purposes175

Besides as discussed by Michael

Shiner when he analyzed the implementation of Recommendation 61 of the Stephen Lawrence

report the community did feel uncomfortable when giving some personal information to the

police

In England and Wales however the Data Protection Act 1998 provides that racial or

ethnic origin of the data subject is among other such as political opinions sexual life what

international law of freedom of information and data protection call ldquosensitive personal datardquo

According to the explanatory report on Convention ETS 108 the special treatment provided for

some data is legitimized not in the methods used to collect the data but essentially in the

potential significance and so it states that ldquoeven if their processing respects all the normal criteria

of lawfulness proportionality confidentiality etc the fact still remains that these data because

of their capacity to reveal potentially discriminatory information carry special risksrdquo176

It is possible to conclude that there is a culture of concern As it happen with other rights

states must provide for safeguards and the breach of law shall be brought to justice The

stigmatizing potential of ethnic data must be taken into account and there is no ambiguity in

balancing both sides of the discussion If in one hand the individual qualitative or statistical data

have stigmatizing potential ndash for instance criminal data can reveal that there are more people

Simon Patrick ldquoEthnicrdquo Statistics and data protection in the Council of Europe Countries ECRI (2007) 176

Simon Patrick ldquoEthnicrdquo Statistics and data protection in the Council of Europe Countries (2007) Pg 17

from one ethnic group committing crime than people from other group177

or in case of political

religious or ethnical persecutions ndash on the other hand combating these stigmatizations require

reliable information concerning how minorities groups are being discriminated against

Moreover some assumptions held by law enforcement officers and social perceptions can

be elucidated by data that present a counter-argument to them Besides data analysis can for

instance indicates causes and correlations that can clarify how ineffective and wrong those

assumptions are

In this regard a controversy was faced by the US when the FBI Domestic Investigations

and Operations Guide178

was issued in 2008 Among other powers the FBI was able to

ethnically map communities In 2010 the American Civil Liberties Union filed a request to

uncover the records of FBIrsquos collection and use of racial and ethnic data179

The episode calls attention because of the racial and ethnic data misuse in a country that

has solid democratic principles The FBI operation guide gave their agents the power to collect

ethnic data and information on peoplersquos behaviors lifestyle characteristics and cultural

traditions and to map ldquoethnic-orientedrdquo businesses Their aim of mapping local communities

using raced-based criteria was clearly for profiling purposes that resulted in putting ethnic groups

under unequal surveillance

The issue of purpose and means are central in this discussion Obviously this policy

aimed to guarantee the FBIrsquos domain over that information and has intelligence purposes As

Richard Banks states ldquoIt does no good to pretend that blacks and whites are similarly situated with respect to

either rates of perpetration or rates of victimization They are not A dramatic crime gap separates themrdquo In Banks

Richard Beyond Profiling Race Policing and the Drug War (2003) 178

FBI Domestic Investigations and Operations Guide December 16 2008 179

ACLU Seeks Records About FBI Collection Of Racial And Ethnic Data In 29 States And DC July 2010 See at

httpswwwacluorgnational-securityaclu-seeks-records-about-fbi-collection-racial-and-ethnic-data-29-states-and-

proposed by the EU Directive above mentioned the purpose of personal data collection must be

specified explicit and legitimate The way data was collected plus the purposes they served

constitute ethnic profiling instead of combating ethnic profiling If the German reported in

Chapter one ndash that consisted in data screening of a huge amount of personal data in order to find

terrorists lsquosleepersrsquo180

ndash constitutes ethnic profiling so does this power provided to the FBI

which consist in targeting and persecuting people from racial minorities

Apparently this example would not have anything in common with our proposed

monitoring system however this case shows how hard it is to control all the interests at stake

technological possibilities and the access and use of data that have already been collected and

processed

The perverse use of ethnic and racial data must be avoided by non-bias oriented data

collection and management Intelligence purpose is naturally a bias strategy as it focuses on

increasing police effectiveness Safeguards must be put in place to guarantee equality not only in

examining the data but also in collecting it

Because statistical data and other information need to be contextualize the selection of

what data will be processed is as important as the data produced If examined out of context or

with no regard to the methodological notes the data might contribute to distortions suggest

something that is not necessary fully true or induce mistakes

In sum if ethnic data can reinforce stigmas it can also strengthen the fight against

discrimination and racism Ethnic data define an ethnic group and its extension and can also

contribute for this grouprsquos fight for their rights Regarding the recommendations listed in this

967-975 2006 and 180

Schutter Oliviers De and Julie Ringelhein Ethnic Profiling A Rising Challenge for

European Human Rights Law The Modern Law Review Oxford (2008) 71(3) 358-384

thesis it appears to have a consensus from the human rights community that the second should

prevail over the first otherwise discriminations committed by public agents will probably be

hidden from the public For instance during the Nazi regime Roma people were judged as an

inferior race just like the Jews however the lack of knowledge about the extension of the Roma

persecuted and killed has probably affected the course of history as it was only in 1979 that the

West German Federal Parliament identified the Nazi persecution of Roma as being racially

motivated181

In my view in relation to monitoring police activities two main points must be observed

First the nature and type of data collected Second the data must be disclosed what will allow

also the public to control both the information collected and its use

Regarding the nature and type of data recording system like the one recommended by the

Macpherson report is a good way to conceal the issues at stake The data collection can be made

in format of a form and without making people identifiable by providing only for statistical data

Accordingly as Reneacute Padieu observed ldquostatistics are based on data on individuals but are not

interested in individualsrdquo182

Their sole purpose is to describe situations in global terms

Therefore even collecting personal data statistical data are meant to be impersonal

What cannot be impersonal however is the identity of the police officers recording his or her

action which is a way to provide for statistical data about who is being stop and also information

about the officerrsquos decision that guided his or her action

Ah then if there is any real danger of manipulation or if collecting data presents any

threat mechanisms should be put in place to safeguard peoplersquos right to privacy

For more information see httpwwwushmmorgwlcenarticlephpModuleId=10005219 and

httpfcitusfeduholocaustpeoplevictromahtm 182

Reneacute Padieu (2000) Mobiliser les donneacutees existantes enjeux et conditions in Simon Patrick ldquoEthnicrdquo statistics

and data protection in the Council of Europe countries ECRI (2007) Pg 12

Conclusion

As showed though out this thesis law enforcement agents practicing ethnic profiling is a

globalized phenomenon The word universal that so hardly can be applied does represent the

generalized problem of discriminatory policing Despite the global incidence of the problem and

the many forms that ethnic profiling can assume one of the most important aspect of this

discussion are the consequences that racial and ethnic profiling can have

Ethnic profiling by police creates a vicious circle in which the practice is nurtured by

racist convictions and oriented by stereotypes that in turn brings forth aversion to the police and

distances communities from the police This practice impacts negatively in many ways raising

the racial distance within a society and undermining peoplersquos trust and confidence in the police

Therefore besides being legally unacceptable due to the discriminatory and unequal application

of the law ethnic profiling is also morally unbearable and social and politically inadequate Thus

measures need to be taken in order to address and eliminate such practice

The thesis debated the discriminatory aspect of such practice which in some situations is

understood by national states as justifiable The European Court of Human Rights which case

law was analyzed considers that legitimate aims and reasonable relationship of proportionality

between the means employed and the aim sought to be realized are the test imposed to states if

they want to apply different treatments without violating Article 14 of the Convention However

when the ground for impose different treatment is race or ethnicity the Court was clear to affirm

that ldquono difference in treatment which is based exclusively or to a decisive extent on a persons

ethnic origin is capable of being objectively justified in a contemporary democratic society built

on the principles of pluralism and respect for different culturesrdquo183

As Gross and Livingston observed the dispute around ethnic profiling is now normative

Although there is a certain consensus that ethnic profiling is wrong and unlawful state dispute

whether the use of race or ethnicity in specific cases constitute ethnic profiling The cases

discussed in Chapter two show that the core point of the debate surrounds the discussion of

whether race or ethnicity was the ground under which the state acted In very few cases

according to the legal framework and jurisprudence the use of race and ethnicity will be

justifiable what forces states to move the debate that frequently will be replaced under the

dispute of relying or not on race and ethnic grounds

Moving forward in the analysis the thesis discussed themes that can in some level

contribute to the elimination of ethnic profiling Limiting police discretion and implementing

monitoring systems are as this thesis argued the most important measures to compel police to

act in accordance with the law and human rights principles

The debate on limitation of police discretion was legal based In different moments the

thesis observed how experts support the use of guidelines and codes of conduct to orient police

activities and behavior However the conclusion is that those are not enough and discretion

must be constrained by law mostly because of the enforcement power that legal framework

provides Chapter three discussed mainly the notion of reasonable suspicion and its objective

character The law must provide for safeguards against the arbitrary use of police powers and

for that reason lsquoreasonable suspicionrsquo is expected to serve as the guardian of privacy rights

procedural rights and equality in the application of law

December 2005

The thesis posed monitoring and recording police activities as the first step needed to

satisfactorily address ethnic profiling Such system has both prevention and repressive character

considering its potential to highlight errors and to point them out allowing disciplinary measure

to be taken by superior authorities The monitoring system requires systematic collection of

relevant data by establishing the duty to record stops and collect data what makes police officers

automatically aware of the fact that they are been watched observed monitored and assessed

The collection of data and especially ethnic data brings up another issue the question of

data protection The thesis did not focused on legal issues concerning data protection instead it

only highlighted the existent resistance of some countries to establish ethnic data collection

Obviously this resistance impacts on the assessment of anti-discrimination policies once there is

no reliable information to support any evaluation Naturally it also makes harder to analyze the

exercise of ethnic profiling practices

Official data on the ethnic composition of the population and police and on police

activities are also important for litigation purposes As observed in many places litigation is

used as a form of addressing ethnic profiling cases Naturally what is claimed in litigation case

provide a different result compared to what is expected from accountability and monitoring

mechanism however this strategy is equally powerful since it brings the debate to another

sphere of power ndash judiciary power ndash which is often more devoted to the rule of law

However considering that a judicial decision can have small political influence in the

police because it consists in an external order I suggest that together with strong legal standards

the focus of combating ethnic profiling should be on preventive mechanism that implies the need

to constantly revise and rethink police actions and policies This mechanism ndash which includes

monitoring and recording police activities ndash seems to me to be more effective promising

enlightening and broaden than repressive measures which has a more reduced scope and impac

Bibliography

Banks Richard Beyond Profiling Race Policing and the Drug War Stanford Law Review

Vol 56 No 3 pp 571-603 Dec 2003

Barnes Katherine Y Barnes Against Judgement Book Review of Bernard Harcourt Against

Prediction Profiling Policing and Punishing in an Actuarial Age Chicago University of

Chicago Press 2007

Bennetto Jason Police and racism what has been achieved 10 years after the Stephen Lawrence

Inquiry report Equality and Human Rights Commission 2009

Bronitt Simon and Philip Stenning Understanding discretion in modern policing Criminal Law

Journal 35 Crim LJ 319 2011

Bridges Lee Police-Initiated stop practices in the United Kingdom ndash Where are we now Paper

for Roundtable on Current Debates Research Agenda and Strategies to Address Racial

Disparities in Police-Initiated Stops in the UK and USA John Jay College of Criminal Justice

New York August 2011

Buergenthal Thomas The American and European Conventions on Human Rights Similarities

and Differences American University Law Review 30 Am U L Rev 155 1980-1981

ldquoCarry on Recordingrdquo Why police stops should still be recorded Stopwatch May 2011

Citron Eric F Rights and Responsibility in Fourth Amendment Jurisprudence The Problem

with Pretext Yale Law Journal 116 YALE LJ 1072 (2007)

Delsol Rebekah Institutional Racism the Police and Stop and Search A Comparative Study of

Stop and Search in the UK and USA PHD Thesis submitted to the Department of Sociology of

University of Warwick 2006

Delsol Rebekah and Michael Shiner Regulating stop and search A challenge for police and

community relations in England and Wales Critical Criminology 14 241ndash263 2006

Dias Jorge de Figueiredo e Manuel da Costa Andrade Criminologia O homem delinquent e a

sociedade criminoacutegena Coimbra Editora 1997

Ethnic profiling in the Moscow Metro Open Society Justice Initiative (2006)

Ferguson Andrew Predictive Policing and Reasonable Suspicion Emory Law Journal Vol

62259 2012

Fundamental rights-based police training A Manual for Police Trainers European Union

Agency for Fundamental Rights 2013

Hasisi Badi and Yoram Margalioth Ethnic Profiling In Airport Screening Lessons From Israel

1968ndash2010 Oxford University Press on behalf of the American Law and Economics

Association 2012

Harris David The Stories the Statistics and the Law Why ldquoDriving While Blackrdquo Matters

Minnesota Law Review 84 Minn L Rev 265 1999-2000

Hermanin Costanza and Eefje de Kroon The Race Equality Directive a Shadow Report

Lessons learnt from the implementation in nine EU member states Open Society European

Policy Institute July 2013

Hurrel Karen An Experimental Analysis of Examinations and Detentions under Schedule 7 of

the Terrorism Act 2000 Briefing Paper 8 Equality and Human Rights Commission 2013

International Human Rights Standards for Law Enforcement - A Pocket Book on Human Rights

for the Police United Nations High Commissioner for Human Rights Centre for Human Rights

Garrett Brandon Remedying Ethnic Profiling 33 Columbia Human Rights Law Rev 41 2001-

Gross Samuel and Debra Livingston Racial Profiling under Attack Columbia Law Review

Vol1021413 2002

Johnson Kennedy How Racial Profiling in America Became the Law of the Land United States

v Brignoni-Ponce and Whren v United States and the Need for Truly Rebellious Lawyering

The Georgetown Law Journal Vol 981005 2010

Kushnick Louis (1999) Over Policed and Under Protected Stephen Lawrence Institutional

and Police Practices Sociological Research Online vol 4 no 1

Macpherson ReportmdashTen Years On UK Home Affairs Committee July 2009 Available at

httpwwwpublicationsparliamentukpacm200809cmselectcmhaff42742703htmnote39

Miller Joel Nick Bland and Paul Quinton A Challenge for Police-Community Relations

Rethinking stops and search in England and Wales European Journal on Criminal Policy and

Research 9 71ndash93 2001

MVA and J Miller Profiling Populations Available for Stop and Search Home Office Police

Research Series Paper 131 London 2000

Neal Sarah (2003) The Scarman Report the Macpherson Report and the Media how

newspapers respond to race-centred social policy interventions Journal of Social Policy 32(1)

pp 55ndash74

Palmer Suzella lsquoDutty Babylonrsquo policing Black communities and the politics of resistance

Criminal Justice Matters 871 26-27 2012

Programme of Action World Conference against Racism Racial Discrimination Xenophobia

and Related Intolerance Durban 2001

Reducing Ethnic profiling in the European Union A handbook of good practices Open Society

Justice Initiative 2002

Redmayne Mike Book Review Profiles Probabilities and Stereotypes by Frederick Schauer

Journal of Law and Society Vol 32 No 2 Jun 2005 pp 333-339

Schutter Oliviers De and Julie Ringelhein Ethnic Profiling A Rising Challenge for European

Human Rights Law The Modern Law ReviewOxford (2008) 71(3) 358-384

Shiner Michael National Implementation of the recording of police stops Great Britain Home

Office London UK 2006

Shiner Michael Presentation about Organizational strategies for change and regulation In

Roundtable on Current DebatesResearch Agendas and Strategies to Address EthnicRacial

Profiling in the UK and USA OSFJohn Jay College of Criminal Justice August 2011

Simon Patrick ldquoEthnicrdquo Statistics and data protection in the Council of Europe Countries

Institut National dEtudes Deacutemographiques Council of Europe Strasburg 2007

Ramirez Deborah Jack McDevitt and Amy Farrell A Resource Guide on Racial Profiling Data

Collection Systems Promising Practices and Lessons Learned US Department of Justice

Northeastern University 2000

Stop and Search Powers Are the police using them effectively and fairly Majestyrsquos Inspectorate

of Constabulary Inspecting Policing in the Public Interest Report 2013

Storry Kirsten The Implications of the Macpherson Report Into the Death of Stephen Lawrence

Kirsten Storry 12 Current Issues Crim Just 106 2000-2001

Sunshine Jason and Tom Tyler The Role of Procedural Justice and Legitimacy in Shaping

Public Support for Policing Law amp Society Review Volume 37 Number 3 (2003)

The Inquiry into the matters arising from the death pf Stephen Lawrence The Stephen Lawrence

Inquiry Conducted by Sir William Macpherson of Cluny 15 February 1999

Towards More Effective Policing Understanding and Preventing Discriminatory Ethnic

Profiling A Guide European Union Agency for Fundamental Rights Publications Office of the

European Union 2010

Tyler Tom and Cheryl Wakslak Profiling and Police legitimacy Criminology Volume 42

Number 2 2004

Tyler Tom R Policing in Black and White Ethnic group differences in trust and confidence in

the Police Police Quarterly v8 n3 p322-342 sep2005

Peter Moskos Book Review of Bernard Harcourt Against Prediction Profiling Policing and

Punishing in an Actuarial Age Chicago University of Chicago Press 2007

Zander Michael PACE (The Police and Criminal Evidence Act 1984) Past Present and Future

LSE Law Society and Economy Working Papers 12012 London School of Economics and

Political Science Law Department 2012

Wu Steven In The Secret Ambition of ethnic profiling The Yale Law Journal 115 Yale LJ

491 2005

Report on contemporary forms of racism racial discrimination xenophobia and related

intolerance by the Special Rapporteur Mr Doudou Diegravene ECN4200418 January 2004

Progress Report on Administration of Justice Rule of Law and Democracy Discrimination in

the Criminal Justice system by the UN Special Rapporteur Ms Leiumlla Zerrougui

ECN4Sub220057 2005

intolerance by the Special Rapporteur Doudou Diegravene Mission to the United States of America

AHRC1136Add3 April 2009

intolerance by the Special Rapporteur Mutuma Ruteere AHRC2033 May 2012

intolerance by the Special Rapporteur Mutuma Ruteere AHRC2356 April 2013

intolerance by the Special Rapporteur Mutuma Ruteere AHRC2356 Add3 May 2013

Report of the Special Rapporteur on contemporary forms of racism racial discrimination

xenophobia and related intolerance by the Special Rapporteur Mutuma Ruteere Visit to Spain

AHRC2356 June 2013

ref1118069

Abstract

The thesis debates the phenomenon of ethnic profiling which is one of the growing forms of

modern racial and ethnic discrimination Hidden behind security and safety arguments this

practice constantly stigmatizes minority groups putting them under more rigid surveillance or

submitting them to less respectful treatments This thesis argues that ethnic profiling by law

enforcement officers must end To reach this goal the thesis discusses the existent legal

framework assessing how they prevent or enable discrimination Moreover the thesis concludes

that measures such as monitoring and recording police activities are fundamental to address the

issue of ethnic profiling

Acknowledgements

Contents

Introduction 6

Conclusion 84

Bibliography 88

Introduction

mixedrdquo1

the police

businessrsquordquo6

activities12

2012 12

2007 14

71ndash93 2001 17

security checks

profiling

967-975 2006 20

this question

racism4524770 23

justified

Pg 1414 25

churchrdquo26

rights

Jews 32

doing thingsrdquo34

officers

by prejudice

(2003) Pg 534 40

Policing (2003)

crime raterdquo45

Pg 326 48

policing

profilingrdquo51

of domestic issues

ldquoArticle 1

statusrdquo

Covenantrdquo52

No 14932006 CCPRC96D14932006

grouprdquo55

No 14932006 CCPRC96D14932006 Pg 4 56

No 14932006 CCPRC96D14932006 Pg 10

minorities

in the police

22 European level

According to the

statusrdquo

Conventionrdquo67

public authority

Conventionrdquo68

justified

December 2005

December 2005 70

and necessity72

2002 Pg 193 74

Human Rightsrdquo76

of Spainrdquo82

of racism84

profiling

2007 90

groups91

activitiesrdquo92

Editora 1997 Pg 443

exercise

goals100

powers

31 European cases

and the

conduct

type of guidance

orientationrdquo

decision 2052013

of law and the ECHR

1224586 1238386 Judgment 30 August 1990

has been secured

32 National cases

1224586 1238386 Judgment 30 August 1990 111

Pg1 114

assessed the

According to

State v Soto 734 A2d 350 (1996) 119

Vol 981005 2010 Pg 1048

might have

Terry v Ohio (1968) 392 US 1 27

Moving

1034 (SAS) 131

322 United Kingdom

powers

deteriorating134

lookrsquo137

Lord Scarman

highlighted

publicrdquo146

UK and USA (2011) 143

Department 2012 145

practice

good relations

wider discretion

the courtsrdquo152

policing

and national origin

and 14th

was addressed

other factors162

among other things

(2000-2001) 163

(2000-2001)

should be published

statistical data

purposes

must be made

convictionsrdquo171

erased or rectified

police

assumptions are

processed

967-975 2006 and 180

motivated181

Conclusion

December 2005

Bibliography

Vol 56 No 3 pp 571-603 Dec 2003

Chicago Press 2007

62259 2012

Association 2012

Vol1021413 2002

pp 55ndash74

European Union 2010

Number 2 2004

491 2005

ECN4Sub220057 2005

AHRC2356 June 2013

ref1118069

Acknowledgements

Contents

Introduction 6

Conclusion 84

Bibliography 88

Introduction

mixedrdquo1

the police

businessrsquordquo6

activities12

2012 12

2007 14

71ndash93 2001 17

security checks

profiling

967-975 2006 20

this question

racism4524770 23

justified

Pg 1414 25

churchrdquo26

rights

Jews 32

doing thingsrdquo34

officers

by prejudice

(2003) Pg 534 40

Policing (2003)

crime raterdquo45

Pg 326 48

policing

profilingrdquo51

of domestic issues

ldquoArticle 1

statusrdquo

Covenantrdquo52

No 14932006 CCPRC96D14932006

grouprdquo55

No 14932006 CCPRC96D14932006 Pg 4 56

No 14932006 CCPRC96D14932006 Pg 10

minorities

in the police

22 European level

According to the

statusrdquo

Conventionrdquo67

public authority

Conventionrdquo68

justified

December 2005

December 2005 70

and necessity72

2002 Pg 193 74

Human Rightsrdquo76

of Spainrdquo82

of racism84

profiling

2007 90

groups91

activitiesrdquo92

Editora 1997 Pg 443

exercise

goals100

powers

31 European cases

and the

conduct

type of guidance

orientationrdquo

decision 2052013

of law and the ECHR

1224586 1238386 Judgment 30 August 1990

has been secured

32 National cases

1224586 1238386 Judgment 30 August 1990 111

Pg1 114

assessed the

According to

State v Soto 734 A2d 350 (1996) 119

Vol 981005 2010 Pg 1048

might have

Terry v Ohio (1968) 392 US 1 27

Moving

1034 (SAS) 131

322 United Kingdom

powers

deteriorating134

lookrsquo137

Lord Scarman

highlighted

publicrdquo146

UK and USA (2011) 143

Department 2012 145

practice

good relations

wider discretion

the courtsrdquo152

policing

and national origin

and 14th

was addressed

other factors162

among other things

(2000-2001) 163

(2000-2001)

should be published

statistical data

purposes

must be made

convictionsrdquo171

erased or rectified

police

assumptions are

processed

967-975 2006 and 180

motivated181

Conclusion

December 2005

Bibliography

Vol 56 No 3 pp 571-603 Dec 2003

Chicago Press 2007

62259 2012

Association 2012

Vol1021413 2002

pp 55ndash74

European Union 2010

Number 2 2004

491 2005

ECN4Sub220057 2005

AHRC2356 June 2013

ref1118069

Contents

Introduction 6

Conclusion 84

Bibliography 88

Introduction

mixedrdquo1

the police

businessrsquordquo6

activities12

2012 12

2007 14

71ndash93 2001 17

security checks

profiling

967-975 2006 20

this question

racism4524770 23

justified

Pg 1414 25

churchrdquo26

rights

Jews 32

doing thingsrdquo34

officers

by prejudice

(2003) Pg 534 40

Policing (2003)

crime raterdquo45

Pg 326 48

policing

profilingrdquo51

of domestic issues

ldquoArticle 1

statusrdquo

Covenantrdquo52

No 14932006 CCPRC96D14932006

grouprdquo55

No 14932006 CCPRC96D14932006 Pg 4 56

No 14932006 CCPRC96D14932006 Pg 10

minorities

in the police

22 European level

According to the

statusrdquo

Conventionrdquo67

public authority

Conventionrdquo68

justified

December 2005

December 2005 70

and necessity72

2002 Pg 193 74

Human Rightsrdquo76

of Spainrdquo82

of racism84

profiling

2007 90

groups91

activitiesrdquo92

Editora 1997 Pg 443

exercise

goals100

powers

31 European cases

and the

conduct

type of guidance

orientationrdquo

decision 2052013

of law and the ECHR

1224586 1238386 Judgment 30 August 1990

has been secured

32 National cases

1224586 1238386 Judgment 30 August 1990 111

Pg1 114

assessed the

According to

State v Soto 734 A2d 350 (1996) 119

Vol 981005 2010 Pg 1048

might have

Terry v Ohio (1968) 392 US 1 27

Moving

1034 (SAS) 131

322 United Kingdom

powers

deteriorating134

lookrsquo137

Lord Scarman

highlighted

publicrdquo146

UK and USA (2011) 143

Department 2012 145

practice

good relations

wider discretion

the courtsrdquo152

policing

and national origin

and 14th

was addressed

other factors162

among other things

(2000-2001) 163

(2000-2001)

should be published

statistical data

purposes

must be made

convictionsrdquo171

erased or rectified

police

assumptions are

processed

967-975 2006 and 180

motivated181

Conclusion

December 2005

Bibliography

Vol 56 No 3 pp 571-603 Dec 2003

Chicago Press 2007

62259 2012

Association 2012

Vol1021413 2002

pp 55ndash74

European Union 2010

Number 2 2004

491 2005

ECN4Sub220057 2005

AHRC2356 June 2013

ref1118069

Introduction

mixedrdquo1

the police

businessrsquordquo6

activities12

2012 12

2007 14

71ndash93 2001 17

security checks

profiling

967-975 2006 20

this question

racism4524770 23

justified

Pg 1414 25

churchrdquo26

rights

Jews 32

doing thingsrdquo34

officers

by prejudice

(2003) Pg 534 40

Policing (2003)

crime raterdquo45

Pg 326 48

policing

profilingrdquo51

of domestic issues

ldquoArticle 1

statusrdquo

Covenantrdquo52

No 14932006 CCPRC96D14932006

grouprdquo55

No 14932006 CCPRC96D14932006 Pg 4 56

No 14932006 CCPRC96D14932006 Pg 10

minorities

in the police

22 European level

According to the

statusrdquo

Conventionrdquo67

public authority

Conventionrdquo68

justified

December 2005

December 2005 70

and necessity72

2002 Pg 193 74

Human Rightsrdquo76

of Spainrdquo82

of racism84

profiling

2007 90

groups91

activitiesrdquo92

Editora 1997 Pg 443

exercise

goals100

powers

31 European cases

and the

conduct

type of guidance

orientationrdquo

decision 2052013

of law and the ECHR

1224586 1238386 Judgment 30 August 1990

has been secured

32 National cases

1224586 1238386 Judgment 30 August 1990 111

Pg1 114

assessed the

According to

State v Soto 734 A2d 350 (1996) 119

Vol 981005 2010 Pg 1048

might have

Terry v Ohio (1968) 392 US 1 27

Moving

1034 (SAS) 131

322 United Kingdom

powers

deteriorating134

lookrsquo137

Lord Scarman

highlighted

publicrdquo146

UK and USA (2011) 143

Department 2012 145

practice

good relations

wider discretion

the courtsrdquo152

policing

and national origin

and 14th

was addressed

other factors162

among other things

(2000-2001) 163

(2000-2001)

should be published

statistical data

purposes

must be made

convictionsrdquo171

erased or rectified

police

assumptions are

processed

967-975 2006 and 180

motivated181

Conclusion

December 2005

Bibliography

Vol 56 No 3 pp 571-603 Dec 2003

Chicago Press 2007

62259 2012

Association 2012

Vol1021413 2002

pp 55ndash74

European Union 2010

Number 2 2004

491 2005

ECN4Sub220057 2005

AHRC2356 June 2013

ref1118069

Introduction

mixedrdquo1

the police

businessrsquordquo6

activities12

2012 12

2007 14

71ndash93 2001 17

security checks

profiling

967-975 2006 20

this question

racism4524770 23

justified

Pg 1414 25

churchrdquo26

rights

Jews 32

doing thingsrdquo34

officers

by prejudice

(2003) Pg 534 40

Policing (2003)

crime raterdquo45

Pg 326 48

policing

profilingrdquo51

of domestic issues

ldquoArticle 1

statusrdquo

Covenantrdquo52

No 14932006 CCPRC96D14932006

grouprdquo55

No 14932006 CCPRC96D14932006 Pg 4 56

No 14932006 CCPRC96D14932006 Pg 10

minorities

in the police

22 European level

According to the

statusrdquo

Conventionrdquo67

public authority

Conventionrdquo68

justified

December 2005

December 2005 70

and necessity72

2002 Pg 193 74

Human Rightsrdquo76

of Spainrdquo82

of racism84

profiling

2007 90

groups91

activitiesrdquo92

Editora 1997 Pg 443

exercise

goals100

powers

31 European cases

and the

conduct

type of guidance

orientationrdquo

decision 2052013

of law and the ECHR

1224586 1238386 Judgment 30 August 1990

has been secured

32 National cases

1224586 1238386 Judgment 30 August 1990 111

Pg1 114

assessed the

According to

State v Soto 734 A2d 350 (1996) 119

Vol 981005 2010 Pg 1048

might have

Terry v Ohio (1968) 392 US 1 27

Moving

1034 (SAS) 131

322 United Kingdom

powers

deteriorating134

lookrsquo137

Lord Scarman

highlighted

publicrdquo146

UK and USA (2011) 143

Department 2012 145

practice

good relations

wider discretion

the courtsrdquo152

policing

and national origin

and 14th

was addressed

other factors162

among other things

(2000-2001) 163

(2000-2001)

should be published

statistical data

purposes

must be made

convictionsrdquo171

erased or rectified

police

assumptions are

processed

967-975 2006 and 180

motivated181

Conclusion

December 2005

Bibliography

Vol 56 No 3 pp 571-603 Dec 2003

Chicago Press 2007

62259 2012

Association 2012

Vol1021413 2002

pp 55ndash74

European Union 2010

Number 2 2004

491 2005

ECN4Sub220057 2005

AHRC2356 June 2013

ref1118069

the police

businessrsquordquo6

activities12

2012 12

2007 14

71ndash93 2001 17

security checks

profiling

967-975 2006 20

this question

racism4524770 23

justified

Pg 1414 25

churchrdquo26

rights

Jews 32

doing thingsrdquo34

officers

by prejudice

(2003) Pg 534 40

Policing (2003)

crime raterdquo45

Pg 326 48

policing

profilingrdquo51

of domestic issues

ldquoArticle 1

statusrdquo

Covenantrdquo52

No 14932006 CCPRC96D14932006

grouprdquo55

No 14932006 CCPRC96D14932006 Pg 4 56

No 14932006 CCPRC96D14932006 Pg 10

minorities

in the police

22 European level

According to the

statusrdquo

Conventionrdquo67

public authority

Conventionrdquo68

justified

December 2005

December 2005 70

and necessity72

2002 Pg 193 74

Human Rightsrdquo76

of Spainrdquo82

of racism84

profiling

2007 90

groups91

activitiesrdquo92

Editora 1997 Pg 443

exercise

goals100

powers

31 European cases

and the

conduct

type of guidance

orientationrdquo

decision 2052013

of law and the ECHR

1224586 1238386 Judgment 30 August 1990

has been secured

32 National cases

1224586 1238386 Judgment 30 August 1990 111

Pg1 114

assessed the

According to

State v Soto 734 A2d 350 (1996) 119

Vol 981005 2010 Pg 1048

might have

Terry v Ohio (1968) 392 US 1 27

Moving

1034 (SAS) 131

322 United Kingdom

powers

deteriorating134

lookrsquo137

Lord Scarman

highlighted

publicrdquo146

UK and USA (2011) 143

Department 2012 145

practice

good relations

wider discretion

the courtsrdquo152

policing

and national origin

and 14th

was addressed

other factors162

among other things

(2000-2001) 163

(2000-2001)

should be published

statistical data

purposes

must be made

convictionsrdquo171

erased or rectified

police

assumptions are

processed

967-975 2006 and 180

motivated181

Conclusion

December 2005

Bibliography

Vol 56 No 3 pp 571-603 Dec 2003

Chicago Press 2007

62259 2012

Association 2012

Vol1021413 2002

pp 55ndash74

European Union 2010

Number 2 2004

491 2005

ECN4Sub220057 2005

AHRC2356 June 2013

ref1118069

businessrsquordquo6

activities12

2012 12

2007 14

71ndash93 2001 17

security checks

profiling

967-975 2006 20

this question

racism4524770 23

justified

Pg 1414 25

churchrdquo26

rights

Jews 32

doing thingsrdquo34

officers

by prejudice

(2003) Pg 534 40

Policing (2003)

crime raterdquo45

Pg 326 48

policing

profilingrdquo51

of domestic issues

ldquoArticle 1

statusrdquo

Covenantrdquo52

No 14932006 CCPRC96D14932006

grouprdquo55

No 14932006 CCPRC96D14932006 Pg 4 56

No 14932006 CCPRC96D14932006 Pg 10

minorities

in the police

22 European level

According to the

statusrdquo

Conventionrdquo67

public authority

Conventionrdquo68

justified

December 2005

December 2005 70

and necessity72

2002 Pg 193 74

Human Rightsrdquo76

of Spainrdquo82

of racism84

profiling

2007 90

groups91

activitiesrdquo92

Editora 1997 Pg 443

exercise

goals100

powers

31 European cases

and the

conduct

type of guidance

orientationrdquo

decision 2052013

of law and the ECHR

1224586 1238386 Judgment 30 August 1990

has been secured

32 National cases

1224586 1238386 Judgment 30 August 1990 111

Pg1 114

assessed the

According to

State v Soto 734 A2d 350 (1996) 119

Vol 981005 2010 Pg 1048

might have

Terry v Ohio (1968) 392 US 1 27

Moving

1034 (SAS) 131

322 United Kingdom

powers

deteriorating134

lookrsquo137

Lord Scarman

highlighted

publicrdquo146

UK and USA (2011) 143

Department 2012 145

practice

good relations

wider discretion

the courtsrdquo152

policing

and national origin

and 14th

was addressed

other factors162

among other things

(2000-2001) 163

(2000-2001)

should be published

statistical data

purposes

must be made

convictionsrdquo171

erased or rectified

police

assumptions are

processed

967-975 2006 and 180

motivated181

Conclusion

December 2005

Bibliography

Vol 56 No 3 pp 571-603 Dec 2003

Chicago Press 2007

62259 2012

Association 2012

Vol1021413 2002

pp 55ndash74

European Union 2010

Number 2 2004

491 2005

ECN4Sub220057 2005

AHRC2356 June 2013

ref1118069

activities12

2012 12

2007 14

71ndash93 2001 17

security checks

profiling

967-975 2006 20

this question

racism4524770 23

justified

Pg 1414 25

churchrdquo26

rights

Jews 32

doing thingsrdquo34

officers

by prejudice

(2003) Pg 534 40

Policing (2003)

crime raterdquo45

Pg 326 48

policing

profilingrdquo51

of domestic issues

ldquoArticle 1

statusrdquo

Covenantrdquo52

No 14932006 CCPRC96D14932006

grouprdquo55

No 14932006 CCPRC96D14932006 Pg 4 56

No 14932006 CCPRC96D14932006 Pg 10

minorities

in the police

22 European level

According to the

statusrdquo

Conventionrdquo67

public authority

Conventionrdquo68

justified

December 2005

December 2005 70

and necessity72

2002 Pg 193 74

Human Rightsrdquo76

of Spainrdquo82

of racism84

profiling

2007 90

groups91

activitiesrdquo92

Editora 1997 Pg 443

exercise

goals100

powers

31 European cases

and the

conduct

type of guidance

orientationrdquo

decision 2052013

of law and the ECHR

1224586 1238386 Judgment 30 August 1990

has been secured

32 National cases

1224586 1238386 Judgment 30 August 1990 111

Pg1 114

assessed the

According to

State v Soto 734 A2d 350 (1996) 119

Vol 981005 2010 Pg 1048

might have

Terry v Ohio (1968) 392 US 1 27

Moving

1034 (SAS) 131

322 United Kingdom

powers

deteriorating134

lookrsquo137

Lord Scarman

highlighted

publicrdquo146

UK and USA (2011) 143

Department 2012 145

practice

good relations

wider discretion

the courtsrdquo152

policing

and national origin

and 14th

was addressed

other factors162

among other things

(2000-2001) 163

(2000-2001)

should be published

statistical data

purposes

must be made

convictionsrdquo171

erased or rectified

police

assumptions are

processed

967-975 2006 and 180

motivated181

Conclusion

December 2005

Bibliography

Vol 56 No 3 pp 571-603 Dec 2003

Chicago Press 2007

62259 2012

Association 2012

Vol1021413 2002

pp 55ndash74

European Union 2010

Number 2 2004

491 2005

ECN4Sub220057 2005

AHRC2356 June 2013

ref1118069

activities12

2012 12

2007 14

71ndash93 2001 17

security checks

profiling

967-975 2006 20

this question

racism4524770 23

justified

Pg 1414 25

churchrdquo26

rights

Jews 32

doing thingsrdquo34

officers

by prejudice

(2003) Pg 534 40

Policing (2003)

crime raterdquo45

Pg 326 48

policing

profilingrdquo51

of domestic issues

ldquoArticle 1

statusrdquo

Covenantrdquo52

No 14932006 CCPRC96D14932006

grouprdquo55

No 14932006 CCPRC96D14932006 Pg 4 56

No 14932006 CCPRC96D14932006 Pg 10

minorities

in the police

22 European level

According to the

statusrdquo

Conventionrdquo67

public authority

Conventionrdquo68

justified

December 2005

December 2005 70

and necessity72

2002 Pg 193 74

Human Rightsrdquo76

of Spainrdquo82

of racism84

profiling

2007 90

groups91

activitiesrdquo92

Editora 1997 Pg 443

exercise

goals100

powers

31 European cases

and the

conduct

type of guidance

orientationrdquo

decision 2052013

of law and the ECHR

1224586 1238386 Judgment 30 August 1990

has been secured

32 National cases

1224586 1238386 Judgment 30 August 1990 111

Pg1 114

assessed the

According to

State v Soto 734 A2d 350 (1996) 119

Vol 981005 2010 Pg 1048

might have

Terry v Ohio (1968) 392 US 1 27

Moving

1034 (SAS) 131

322 United Kingdom

powers

deteriorating134

lookrsquo137

Lord Scarman

highlighted

publicrdquo146

UK and USA (2011) 143

Department 2012 145

practice

good relations

wider discretion

the courtsrdquo152

policing

and national origin

and 14th

was addressed

other factors162

among other things

(2000-2001) 163

(2000-2001)

should be published

statistical data

purposes

must be made

convictionsrdquo171

erased or rectified

police

assumptions are

processed

967-975 2006 and 180

motivated181

Conclusion

December 2005

Bibliography

Vol 56 No 3 pp 571-603 Dec 2003

Chicago Press 2007

62259 2012

Association 2012

Vol1021413 2002

pp 55ndash74

European Union 2010

Number 2 2004

491 2005

ECN4Sub220057 2005

AHRC2356 June 2013

ref1118069